NORTH CAROLINA LAW REVIEW
Volume 91
Number 5 Race Trials
Article 7
6-1-2013
Slaves, Free Blacks, and Race in the Legal Regimes
of Cuba, Louisiana, and Virginia: A Comparison
Ariela Gross
Alejandro de la Fuente
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Ariela Gross & Alejandro de la Fuente, Slaves, Free Blacks, and Race in the Legal Regimes of Cuba, Louisiana, and Virginia: A Comparison,
91 N.C. L. Rev. 1699 (2013).
Available at: http://scholarship.law.unc.edu/nclr/vol91/iss5/7
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SLAVES, FREE BLACKS, AND RACE IN THE
LEGAL REGIMES OF CUBA, LOUISIANA,
AND VIRGINIA: A COMPARISON*
ARIELA GROSS"
& ALEJANDRO DE LA FUENTE**
This Article analyzes the legal regimes regulating slavery and
race at the ground level as they evolved in three different
locations in the Americas (Virginia, Cuba, and Louisiana),
showing how they shaped, and were shaped in turn, by the
actions of people of color. The Article attempts to compare law
"from the bottom up": regulatory efforts by local legislatures,
slaves' claims in court, trial-level adjudications,and interactions
among ordinary people and low-level government officials. We
begin with the greatest commonality of racial status across the
Americas: all over the New World, slaveholders built
discriminatory legal regimes that sought to equate "negro" and
"slave." We then follow the trajectoriesof these legal systems in
three different periods: the early years of these colonies, until
roughly the 1760s; the Age of Revolution, from the 1770s
* © 2013 Ariela Gross & Alejandro de la Fuente.
** John B. and Alice R. Sharp Professor of Law and History, University of Southern
California.
*** Robert Woods Bliss Professor of Latin American History and Economics and
Professor of African and African American Studies, Harvard University. The authors wish
to thank Al Brophy, Robert Cottrol, Jean H6brard, Martha Jones, Silvia Lara, Michelle
McKinley, Brian Owensby, Bianca Premo, Rebecca Scott, Chris Tomlins, Richard Turits,
Victor Uribe, C6cile Vidal, participants in faculty colloquia at the tcole des Hautes ttudes
en Sciences Sociales, De Paul Law School, Boston University School of Law, the
University of Virginia Law School, San Francisco State University, the University of
Southern California, the University of Michigan, the University of Oregon, and the
University of Campinas, Brazil as well as the audiences for conference presentations at the
annual meetings of the Law and Society Association, the American Society for Legal
History, and the American Studies Association. Finally, we would like to thank the North
Carolina Law Review for organizing this Symposium and Yasir Latifi for stellar editing.
Ryan MacDonald provided invaluable research assistance.
The sources first cited in notes 3, 283, 284, and 347 are archival in nature. Because
many of these documents are too fragile to reproduce, the North CarolinaLaw Review was
unable to independently assess them for substantive support. The Law Review has relied
on the representations of the authors concerning the accuracy of the citations, quotations,
and related information herein.
Many quotations in this piece have been transcribed from original source
materials, which includes sources using Old English spellings and terminology. The Law
Review has retained these spellings and terminology where possible.
NORTH CAROLINA LAW REVIEW
1700
[Vol. 91
through the early nineteenth century; and the nineteenth century,
up to the U.S. Civil War and the Cuban wars of independence.
We pay special attention to the ways slaves attempted to attain
freedom, and the development of communities of free people of
color. We show that in the earliest period, Iberian legal
precedents meant a quicker establishment of racial distinctions
than in Virginia, but that as slave legal regimes developed, the
Iberian legal precedents limited the ability of colonial
slaveholders to close down avenues to freedom in both Cuba and
Louisiana. The size of the communities of free people of color
that resulted from freer manumission policies had significant
repercussionsfor black citizenship after emancipation.
INTRODUCTION
..........................................
1700
..........................
1708
I.
LEGAL PRECEDENTS
II.
BUILDING RACIAL DISTINCTIONS INTO LAW ......
...... 1713
A. Cuba
B. Virginia
C. Louisiana
.......................................... 1714
....................................
1717
............................
...... 1722
III.
MANUMISSION, FREE PEOPLE OF COLOR, AND THE LAW...1724
IV.
A. The FormativePeriod-Beginningsto the 1760s .............
B. The Age of Revolution: 1770s-1820s
...............
......
.....................
C. Nineteenth Century
.....
"RACE TRIALS" IN THE NINETEENTH CENTURY ....
CONCLUSION
.......................................
1725
1731
1738
1746
..... 1754
INTRODUCTION
In 1778, a slave named George petitioned the Virginia House of
Delegates for his freedom.' Arguing that his late master had
promised him freedom, effective at the time of his death, and having
fulfilled his duties as a faithful "domestic servant" for years, George
requested that his manumission be officially acknowledged. 2 That
same year, two slaves, Maria de la Merced and Maria Silveria, living
in Santa Clara, Cuba, petitioned the Lieutenant Governor to obtain
their manumission letter, claiming that they were entitled to purchase
their freedom after many years of loyal and devoted service.' Their
1. See EVA SHEPPARD WOLF, RACE AND LIBERTY IN THE NEW NATION:
EMANCIPATION IN VIRGINIA FROM THE REVOLUTION TO NAT TURNER'S REBELLION
28 (2006).
2. See id.
3. See Letter from Antonio de Camba, Lieutenant Governor of Trinidad (Apr. 20,
1778) (collection of Archivos General de Indias, legajo 1257, no. 30).
2013]
SLAVES, FREE BLACKS, AND RACE
1701
cases were similar to that of Catherina, a New Orleans slave who in
1773 sued the estate of her master.' Catherina insisted that she had
served her master's family for many years, that she was sick from an
accident that had injured her, and that she had been promised her
freedom.' Although the administrator of the estate refused his
consent, "considering her bad conduct, her iniquity, [and] her
dissimulation," Catherina was able to win freedom for herself and her
five-year-old child.'
These examples point to a widely shared feature of slave
societies in the Americas: slaves similarly attempted to make use of
legal and institutional resources to press claims, fight against the most
egregious forms of abuse, and in some cases even obtain freedom,
with or without the cooperation of their masters. In territories as
distant as New York and Buenos Aires, under republican,
monarchical, or colonial regimes, slaves consistently sought to
improve their working and living conditions, engaging the support of
secular and religious authorities whenever possible and convenient.'
When faced with comparable institutional openings and
opportunities, slaves across the Americas reacted in similar ways.
They seized those opportunities and tried to use them to their own
advantage and to improve the lives of their loved ones.'
Slaves' interactions with legal and religious institutions have
taken center stage in a rich new literature on slavery and law in the
Americas.' During the last two decades, historians and legal scholars
have studied how, through the cumulative effects of legal suits and
claims, slaves participated in the creation of legal meanings, customs,
institutions, and rights. In contrast to earlier analyses of legal regimes
of slavery through legal codes, statutes, precedents, and doctrinal
influences,"o the recent scholarship approaches the study of the law
not as a fixed set of principles and precepts, but as a contentious
social and political space in which different interests, including those
of slaves, constantly collided."
4. See Laura L. Porteous, Index to the Spanish Judicial Records of Louisiana XIV, 9
LA. HIST. Q. 553, 556 (1926) (summarizing Catherina's case against her master's estate).
5. See id.
6. Id.
7. See Alejandro de la Fuente & Ariela Gross, ComparativeStudies of Law, Slavery,
and Race in the Americas, 6 ANN. REV. L. & Soc. SCI. 469,473-74 (2010).
8. See infra Parts III-IV.
9. For more on this literature, see generally de la Fuente & Gross, supra note 7.
10. See id. at 470-72.
11. See id. at 472-73.
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By focusing on slaves' legal activities and strategies, historians
have also questioned traditional distinctions among slave legal
regimes in the United States and Latin America. These distinctions
owe much to Frank Tannenbaum's comparative work on slavery, in
which he sought to demonstrate that differences in modern race
relations resulted from the development of different slave regimes in
"Anglo-Saxon" versus "Latin" America.12 The law was central to
these foundational differences." In "Latin" America, slavery
developed under the influence of a well-established body of ancient
law, of Roman and canonical roots, that conferred on slaves a legal
and moral personality.14 In "Anglo-Saxon" America, by contrast,
slavery developed in the absence of a previously established legal
system, so the planters were free to treat slaves as chattel.'" Slaves
had no rights under the law, their families enjoyed no legal
recognition, and their marriages had no civil effects.' 6 Whereas law
and custom favored freedom in "Latin" America, the social and legal
environment in "Anglo-Saxon" America was hostile to freedom,
where "being a Negro was presumptive of a slave status.""
Revisionist historians in the 1970s-1990s criticized Tannenbaum
for a focus on legislation that provided a misleading top-down history
without sufficient attention to the conditions of slavery on the
ground. The "New Social" historians demonstrated the brutality of
Latin American sugar plantations, the persistence of racial hierarchy
and inequality in Latin America after emancipation, and the lack of
enforcement of paternalist laws about slave treatment. They pointed
to demographic factors to explain variations in slavery regimes-for
example, imbalances in sex ratios to explain higher rates of interracial
marriage or sex, and fluctuations in commodity prices to explain
changing rates of manumission. 8
Thus, for several decades, historians of slavery in both the
United States and Latin America de-emphasized the centrality of the
12. See FRANK TANNENBAUM, SLAVE AND CITIZEN: THE NEGRO IN THE AMERICAS
65-66 (1946).
13. See id. at 65-67.
14. See id. at 62-65.
15. See id. at 103.
16. See id. at 66-82 (listing examples of the lack of legal rights and recognition for
slaves in early America).
17. Id. at 66.
18. For an in-depth summary of this literature, see generally Alejandro de la Fuente,
From Slaves to Citizens? Tannenbaum and the Debates on Slavery, Emancipation, and
Race Relations in Latin America, 77 INT'L LAB. & WORKING CLASS HIST. 154 (2010);
Alejandro de la Fuente, Slave Law and Claims-Making in Cuba: The Tannenbaum Debate
Revisited, 22 LAW & HIST. REV. 339 (2004).
2013]
SLAVES, FREE BLACKS, AND RACE
1703
law to the culture and economy of slavery. But as they studied slaves
and their initiatives, actions, and social networks, social historians
inevitably reencountered the law, which shaped many important
aspects of slaves' lives. The recent scholarship on the legal history of
slavery builds on this body of work and studies the formation and
evolution of legal regimes through the contentious interactions of
slaves, masters, judges and other jurists, government officials, and
sometimes free blacks. Through the prism of these interactions,
former distinctions between "Anglo-Saxon" and "Latin" America
lose salience. What scholars find everywhere, as in the opening
paragraph of this Article, are slaves' remarkably similar attempts to
exploit whichever openings were available to improve their lives. As
one historian states, "[D]espite different legal traditions, the destinies
of discrete groups of Africans and their descendants in cities
throughout the Atlantic world were remarkably similar. By
developing similar ideas and attitudes, these slaves succeeded in
creating spaces that allowed them to change their own social and legal
conditions."1 9
Yet that slaves reacted similarly to openings in the legal and
institutional settings they encountered does not mean that
opportunities were similar across the Americas or that the legal
culture in which slaves operated was irrelevant. Slaves lived within
legal and institutional cultures that were, in fact, vastly different.20
These different legal regimes did have a significant impact on slaves'
lives and their opportunities to achieve freedom.
By widening our scope to emphasize change over time, we see
that slaves' strategies and "destinies" changed along with the place
and period in which they worked and lived. Legal doctrines,
institutions, and procedures were not static, but transformed in
response to both endogenous and exogenous factors. Once we take
into account these transformations, the influence of law and legal
institutions across the Atlantic world comes into relief.21 Yet at the
19. Keila Grinberg, Freedom Suits and Civil Law in Brazil and the United States, 22
SLAVERY & ABOLITION 66,78 (2001).
20. For examples, see infra Part III.
21. See, e.g., Martha S. Jones, Time, Space, and Jurisdictionin Atlantic World Slavery:
The Volunbrun Household in Gradual Emancipation New York, 29 LAW & HIST. REV.
1031, 1034 (2011) (discussing the distinct legal culture in New York during emancipation
reforms). For a broader discussion about this topic, see generally REBECCA J. ScoTT &
JEAN M. HtBRARD, FREEDOM PAPERS: AN ATLANTIC ODYSSEY IN THE AGE OF
EMANCIPATION (2012); EDLIE L. WONG, NEITHER FUGITIVE NOR FREE: ATLANTIC
SLAVERY, FREEDOM SUITS, AND THE LEGAL CULTURE OF TRAVEL (2009).
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same time, any generalization based on a specific moment is bound to
be inaccurate when applied to a different time period.22
This Article seeks to analyze how legal regimes regulating
slavery evolved in three different locations in the Americas and how
they shaped, and were in turn shaped by, slaves' legal actions. We
revisit a comparison that was famously used, decades ago, to uphold
the notion that slavery's "legal structure" in the two Americas was
fundamentally different: Virginia and Cuba.23 To this dyad we add a
third point of comparison: the hybrid legal system of Louisiana,
where it is possible to assess how slaves took advantage of different
legal regimes as they changed during the eighteenth and nineteenth
centuries.24
As part of our comparative analysis, we reassess how legal
precedents and mores informed the formation of legal regimes
concerning slavery in the Americas. Following Tannenbaum, most
historians have assumed that the only way to think about Iberian
legal precedents is in terms of their ameliorative effects on the lives of
blacks and slaves.25 Less attention is given to the fact that, however
protective, these precedents delineated the legal position of slaves
(and to some degree, of free people of color as well) in terms that
were significantly clearer and more rigid than those found in the
British colonies. As a result, in the formative period of Virginia's
slavery, the condition of a slave was considerably more fluid and
ambiguous than in the Iberian colonies.
As we compare the formation and consolidation of slave legal
regimes in these territories, we analyze roughly similar forms of
legislation. When studying slavery in the Spanish empire, previous
historians typically concentrated on precedents such as the Siete
Partidasor on the reales cidulas issued by the Spanish monarchy for
22. See Ira Berlin, Time, Space, and the Evolution ofAfro-American Society on British
Mainland North America, 85 AM. HIST. REV. 44,44 (1980).
23. See HERBERT S. KLEIN, SLAVERY IN THE AMERICAS: A COMPARATIVE STUDY
OF VIRGINIA AND CUBA 37-85 (1967).
24. For studies dealing with slavery and the law in Louisiana over time, see generally
GILBERT C. DIN, SPANIARDS, PLANTERS, AND SLAVES: THE SPANISH REGULATION OF
SLAVERY IN LOUISIANA, 1763-1803 (1999); THOMAS N. INGERSOLL, MAMMON AND
MANON IN EARLY NEW ORLEANS: THE FIRST SLAVE SOCIETY IN THE DEEP SOUTH,
1718-1819 (1999); JUDITH KELLEHER SCHAFER, BECOMING FREE, REMAINING FREE:
MANUMISSION AND ENSLAVEMENT IN NEW ORLEANS, 1846-1862 (2003) [hereinafter
SCHAFER, BECOMING FREE]; JUDITH KELLEHER SCHAFER, SLAVERY, THE CIVIL LAW,
AND THE SUPREME COURT OF LOUISIANA (1994) [hereinafter SCHAFER, SLAVERY AND
THE CIVIL LAW]; Hans W. Baade, The Law of Slavery in Spanish Luisiana, 1769-1803, in
LOUISIANA'S LEGAL HERITAGE 43 (Edward F. Haas ed., 1983).
25. For a discussion of this scholarship, see sources cited supra note 18.
2013]1
SLAVES, FREE BLACKS, AND RACE
1705
different colonial territories beginning in the sixteenth century.2 6
These regulations are important points of reference, but they reflect
priorities and concerns which are very different from those reflected
by the legislative assemblies in the British colonies, controlled as they
were by slaveowners and planters. For this reason, our analysis of
Cuban statutes relies heavily on local law; that is, on regulations
issued by the cabildos, or municipal powers, particularly those of
Havana. In addition to "royal enactments" and "prior metropolitan
law," these regulations constituted an important source of slave law in
Cuba and in other Spanish colonies 2 7-one that has not received
adequate attention in a comparative context. These regulations are
particularly interesting for our present study of legal trends in
"Anglo-Saxon" and "Latin" America for at least two reasons. First,
they are roughly comparable to the statutes approved by colonial
assemblies and councils in the British and French colonies, and better
reflect the aspirations and goals of local slaveowners than other
sources of slave law. Second, these regulations were not produced in a
cultural vacuum. They were part of an Atlantic culture of slave
ownership, which, by the sixteenth century, had produced a vast body
of knowledge about the social standing of Africans and their
descendants.28 In other words, such local regulations were themselves
informed by the very precedents that comparative scholars of
previous generations so frequently invoked to extol the virtues of the
Spanish law of slavery.
At this local level, slaveowners of all nationalities attempted to
build rigid racial distinctions into law that guaranteed not only the
obedience and subservience of their slaves, but also the social
subordination of Africans and their descendants, regardless of social
status. After examining how discriminatory legal regimes were built
on the ground in each setting during the early colonial period, we
follow the trajectories of these legal systems once slavery was firmly
established. We pay special attention to the evolution of
manumission-that is, a slaveowner's right to bestow freedom on his
slaves-to slaves' legal suits for freedom, and to their efforts to turn
self-purchase customary arrangements into legally protected personal
rights. Although the existence and frequency of manumission is not
necessarily a good indicator of slave treatment or of the alleged
26. For a discussion of this scholarship, see sources cited supra notes 7, 18.
27. KLEIN, supra note 23, at 39.
28. See sources cited infra notes 29-30.
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"openness" or benevolence of a slave regime,2 9 we do agree with
previous scholars that this institution is key to understanding
dominant ideas about slavery as a permanent status, and especially
about the possible integration of free people of color into society. 0
Whenever opportunities for manumission were available, the
development of communities of free people of color followed,
because, among other reasons, free blacks contributed funds to
purchase the freedom of relatives or to help slaves purchase their own
freedom."
The existence of communities of free people of color made a
difference to slave societies in a number of ways. Their claims to
subjecthood or citizenship shaped the meanings of race in a given
society both during the era of slavery and after emancipation. We
briefly trace the evolution of the status of free people of color, the
conflicts they brought to the forefront of the law, and the adjudication
of the boundaries between free and enslaved, black, white and Indian.
We also suggest that legal precedents interacted with politics, racial
ideology, and demographics to create differential opportunities for
slaves and free people of color to make legal claims.
As we trace the evolution of these slave societies over time, shifts
in politics and racial ideology also play a role. The Article examines
three periods: the early years of the three colonies, until roughly the
1760s; the Age of Revolution, from the 1770s through the early
nineteenth century; and the nineteenth century, up to the U.S. Civil
War in 1861 and the Cuban wars of independence in 1868. In each of
these three periods, different political and legal configurations helped
to shape the status of slaves and free people of color in their
interactions with legal institutions.
Legal precedents seem to have been particularly important
during the initial, formative period, although in paradoxical ways. The
process of formation and organization of Iberian colonial societies
was informed by a legal culture that clearly demarcated the inferiority
of slaves and, more generally, of "negroes," Africans, 'and their
descendants. Such doctrinal clarity was notoriously absent in early
29. For a summary of the debates surrounding manumission, see Rosemary BranaShute, Manumission, in A HISTORICAL GUIDE TO WORLD SLAVERY 260, 260-66
(Seymour Drescher & Stanley L. Engerman eds., 1998).
30. Cf
STUART B. SCHWARTZ, SUGAR PLANTATIONS
IN THE FORMATION OF
BRAZILIAN SOCIETY: BAHIA, 1550-1835, at 251-53 (1985) (discussing Brazil's slave
society).
31. See, e.g., id. at 252 (discussing how Brazilian slaves "were willing at great sacrifice
and effort to scrape together enough money to purchase their own freedom or that of their
children").
2013]
SLAVES, FREE BLACKS, AND RACE
1707
colonial Virginia. However, as slave legal regimes developed, the
Iberian legal precedents, recycled by royal regulations, limited the
ability of colonial slaveholders to completely dehumanize the slaves,
to close down on manumission, and to get rid of free blacks. Given
their greater autonomy, and the absence of precedents, slaveholders
in Virginia were much more successful in limiting manumission and
the growth of the free population of color. By the 1770s, the
community of free people of color was significantly larger in Havana
(about 14%)2 than in Virginia (about 1%)" or New Orleans (about
3%),34 which had recently come under Spanish control.
As revolutionary ideas swept across the Atlantic, opportunities
for manumission and for slaves' legal claims-making probably
increased everywhere, but were significantly expanded in Virginia.
The small size of the free colored community there, however,
probably helps explain why free blacks were unable to make lasting
gains and why limitations on manumission were reinstated by 1806.35
Legal limits on manumission were reinstated also in Louisiana once it
became part of the American union, but the free population of New
Orleans (at about 20%)36 was by then much larger than that of
Virginia, and the lingering influence of Spanish and French legal
practices allowed greater rights of manumission than in other areas of
the South. In Cuba, despite the phenomenal growth of plantation
slavery, no legal limits were placed on manumission or on slaves'
access to self-purchase. By the early nineteenth century, the free
population of color in Cuba was too significant and too large to be
obliterated. Legal principles and practices allowing slaves to obtain
freedom were too entrenched to be curtailed.
The debates about equality and citizenship that criss-crossed the
Atlantic during the Age of Revolution had similar effects on all
territories. The specter of slave revolt filled slaveowners with fears of
racial cataclysm. They were terrified by the Haitian example.37
Slaveowners reacted by deploying racist ideologies that reasserted the
inferiority of blackness and stripping blacks of political rights. These
ideologies found legislative expression in all three cases, but the
32. See KENNETH F. KIPLE, BLACKS IN COLONIAL CUBA 1774-1899, app. (1976)
(Census of 1774).
33. See WOLF, supranote 1, at 3 (citing 1% "at the time of the Revolution").
34. See Jennifer M. Spear, Book Review, 58 WM. & MARY Q. 276, 277 (3d ser. 2001)
(reviewing DIN, supra note 24); infra note 219 and accompanying text.
35. See infra notes 249-50 and accompanying text.
36. See Spear, supra note 34, at 277; text accompanying note 219.
37. See infra note 243 and accompanying text.
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process of identifying race with status advanced much more in
Virginia than in Havana, with New Orleans remaining an
intermediate case. Slaves reacted to these changes in legal regimes.
Whereas in Havana they continued to press for freedom using
traditional avenues and legal tools, in Virginia, where the association
between slavery and blackness was much clearer, slaves pursued
freedom by claiming non-black (i.e., free) ancestry. The goal
remained the same-to escape slavery-but the legal arguments
changed."
Part I of this Article sets the stage for our comparison by
examining the legal precedents each of the colonies inherited from
Spain, France, and Britain. We then continue in Part II to show the
way local legislatures and courts built racial distinctions into the law,
using the precedents they had brought with them to the New World.
This was an easier process in Havana than in Virginia because the
Spanish colonizers had a much larger toolkit of precedents regarding
race and slavery. By the time Louisiana was settled, there was already
a well-worn template for race law. Part III surveys the legal regime
regarding slaves' access to freedom and the status of free people of
color in each jurisdiction in three eras-the formative period up to
about 1760; the Age of Revolution (1770s to 1820s); and the
nineteenth century. We find strong commonalities across regions in
the Age of Revolution, but divergence in the nineteenth century. Part
IV turns to local adjudications involving race and people on the
borders between free and slave, and black and white, in the
nineteenth century, arguing that differences in legal and political
regimes help explain the very different strategies people of color used
to make legal claims in this period.
I. LEGAL PRECEDENTS
The first Europeans to transport Africans to the New World did
so as part of an international trade in human beings that had already
generated legal precedents regarding statuses of unfreedom. Spanish
and Portuguese colonizers in the Americas brought with them ideas
about race and slavery formed on the Iberian Peninsula and drew on
their experience with Iberian local legal regulation. By contrast,
British settlers in Virginia did not have the same set of legal
precedents, although ideas about race were certainly in circulation in
the Atlantic world. Louisiana, established a century later, had not
38. See infra Parts III.C, IV.
2013]1
SLAVES, FREE BLACKS, AND RACE
1709
only the legal code of the French empire, but local examples to draw
on as well.
By the time of the British colonial settlement in North America,
slavery was fairly widespread and was already becoming associated
with sub-Saharan Africans, in what is now known as Latin America.
Many of the colonizers came from (or through) cities in
Mediterranean Europe, such as Seville, Lisbon, or Valencia, which
were very familiar with slavery in general and with black slavery in
particular. Seville and Lisbon were the slaveholding capitals of
sixteenth-century Western Europe.3 9 These colonizers knew a legal
culture of slavery that placed some restrictions on the power of slave
owners over their slaves. At the same time, this legal culture left little
doubt about the implications of the slave condition and had begun to
associate slavery with certain human groups, particularly those from
sub-Saharan Africa.
The process of association between status (slavery) and African
ancestry as defined by color ("negro" or occasionally "mulato" or
"pardo" as well) was fairly advanced in Iberia as early as the sixteenth
century.40 A significant body of legal doctrine and knowledge helped
cement this association that turned blackness into a synonym of
degradation and ignominy. By the early sixteenth century, when the
proportion of sub-Saharan Africans among slaves in the Iberian
Peninsula was fast growing, "negros" were already deemed to be
people "without honor and faith" and qualified as ugly, barbarous,
and savage.4 1 Hell itself was associated with blackness.42 As a tutor of
the Prince of Portugal explained in 1535, once he landed in Evora he
39. See Jose Luis CORTtS L6PEZ, LA ESCLAVITUD NEGRA EN LA ESPANA
PENINSULAR DEL SIGLO XVI 45-46 (1989); ALFONSO FRANCO SILVA, LA ESCLAVITUD
EN SEVILLA Y SU TIERRA A FINES DE LA EDAD MEDIA 59 (1979); WILLIAM D. PHILLIPS,
JR., HISTORIA DE LA ESCLAVITUD EN ESPANA 164-67, 194-95 (1990); A. C. DE C. M.
SAUNDERS, A SOCIAL HISTORY OF BLACK SLAVES AND FREEDMEN IN PORTUGAL,
1441-1555, at 54 (1982); ALESSANDRO STELLA, HISTOIRES D'ESCLAVES DANS LA
PfNINSULE IBERIQUE 78 (2000).
40. On the importance of blacks among slaves in Seville, Lisbon, and the Canary
Islands in the sixteenth century, see CORTtS LOPEZ, supra note 39, at 204-05; FRANCO
SILVA, supra note 39, at 150-51 (finding that black slaves were the most numerous and
most desirable race of slaves in Seville and Lisbon, two of the most important slave
markets of the period); MANUEL LOBO CABRERA, LA ESCLAVITUD EN LAS CANARIAS
ORIENTALES EN EL SIGLO XVI: NEGROS, MOROS Y MORISCOS 147-49 (1982); PHILLIPS,
supra note 39, at 163-66; SAUNDERS, supra note 39, at 54, 166, 174.
41. See CORTtS LOPEZ, supranote 39, at 91-94.
42. See James H. Sweet, The Iberian Roots of American Racist Thought, 54 WM. &
MARY Q. 143,154 (3d ser. 1997).
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felt "transported to a city in hell; indeed, everywhere [he] looked [he]
saw nothing but blacks."43
These beliefs were normalized in legal ordinances that tended to
blur the line between social status and skin color or African ancestry.
Several regulations in early sixteenth-century Lisbon and other
Portuguese cities established prohibitions on blacks regardless of
social condition. As of 1515, "black women," either slave or free,
"could only sell their wares" in certain designated spaces," and by
mid-century these black petty traders, again regardless of social
condition (and this time also gender), were subject to the city
council's jurisdiction when they defrauded customers.4 5 "Blacks"
were also forbidden from holding dances and gatherings in the city of
Lisbon.46 The legal salience of race is perhaps best seen in the
regulations concerning the city's municipal fountain, which had
separate spouts for whites and for members of other groups,
regardless of social condition.47
Although many regulations did not target blacks as a separate
group, and despite the fact that by the early sixteenth century the
proportion of "white slaves" (that is, from North Africa or the
Eastern Mediterranean) in Iberia was far from negligible, slavery in
the New World became associated with Africans in just a few
decades.48 The ordinances approved by the Audiencia de Santo
Domingo49 in 1528, probably the first body of statutes regulating
slavery in the New World, contained several prohibitions which
referred to "negros" in general, under the assumption that all blacks
were slaves.s0 Mirroring similar local rules approved by municipal
councils in Mediterranean Spain and Portugal, these regulations
43. CORTtS LOPEZ, supra note 39, at 45.
44. See SAUNDERS, supra note 39, at 78.
45. See id. at 76.
46. See id. at 106.
47. See id. at 77.
48. See ALEJANDRO DE LA FUENTE, HAVANA AND THE ATLANTIC IN THE
SIXTEENTH CENTURY 147-48 (2008). But "white slaves" were more important than
usually acknowledged in the Spanish colonies in the sixteenth century. See DEBRA
BLUMENTHAL, ENEMIES AND FAMILIARS: SLAVERY AND MASTERY IN FIFTEENTHCENTURY VALENCIA passim (2009) (discussing slavery developments in Valencia, Spain).
49. As the first court of appeals created by the Spaniards in the New World, the
Audiencia de Santo Domingo created some of the earliest legal documents concerning
slaves and slavery in the Americas. See M.C. MIROW, LATIN AMERICAN LAW: A
HISTORY OF PRIVATE LAW AND INSTITUTIONS IN SPANISH AMERICA 22-24 (2004).
50. see JAVIER MALAGON BARCELO, CODIGO NEGRO CAROLINA 128-37 (J.A.
Caro Alvarez ed., 1974) (1784) (reproducing the 1528 ordinances).
2013]
SLAVES, FREE BLACKS, AND RACE
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prohibited "negros" from consuming wine," carrying weapons,5 2
gathering, and so on.
This body of local law, restrictive and racially discriminatory,
informed the legislative efforts of the council of Havana and other
Latin American cities from the sixteenth century onwards. Despite
the existence of sizeable urban communities of free blacks since early
colonial times, or perhaps because of them, local authorities across
Latin America attempted to circumscribe the social and economic
opportunities of "negros" (slaves and free) as much as possible.5 4 So if
on one hand the Iberian legal precedents and mores placed certain
cultural and institutional limits on what slaveowners in the colonies
could do, they also helped them structure a racially hierarchical and
segmented world in which blacks were naturally placed at the very
bottom of the social ladder.
The Virginia colonists, in turn, lacked these cultural and legal
references. It is likely that by the 1620s many Virginians had already
internalized some negative images of Africans from travelogues and
other writings regarding European encounters in Africa, and they
may already have associated Africans with a degraded form of
servitude. It is quite possible that Iberian racial thought was
transmitted to the Americas on the very slave ships that began to
bring Africans to the Caribbean, Latin America, and then Virginia."
Yet slavery was not established in Virginia law until several decades
later, so that the colony functioned for several decades without clear
legal definitions of race or of status for people of African descent.
The first Africans who arrived in Virginia in the 1620s came to "a
society that lacked a legal institution of slavery."56 The situation of
African "servants" in Virginia during the early decades of the colony
was characterized by a high degree of uncertainty. There were no
provisions for slavery in English common law, because slavery had
disappeared several centuries earlier, and villeinage, the British form
of serfdom, was not seen as a suitable precedent for the regulation of
slaves.57
51.
52.
53.
54.
55.
56.
See id. at 135-36.
See id. at 130.
See id.
See infra Part II.A (discussing race developments in Cuba).
See, e.g., Sweet, supra note 42, at 144.
KATHLEEN M. BROWN, GOOD WIVES, NASTY WENCHES, AND ANXIOUS
PATRIARCHS: GENDER, RACE, AND POWER IN COLONIAL VIRGINIA 109 (1996).
57. See Sally E. Hadden, The Fragmented Laws of Slavery in the Colonial and
Revolutionary Eras, in 1 THE CAMBRIDGE HISTORY OF LAW IN AMERICA 253, 257-58
(Michael Grossberg & Christopher Tomlins eds., 2008).
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While apprenticeship, which bound a servant to a master for a
period of years, bore some similarities to slavery, and early colonial
statutes sometimes referred to indentured servants from England
together with African slaves, master-servant law left important
questions open regarding the regulation of slaves." The first British
colony to develop a slave code, Barbados, did so in 1661, a full four
decades after the first slaves set foot in Virginia. The Barbadian code
drew on French and Spanish colonial slave laws as well as "English
legal conceptions about bound labor,"" but Virginia's lawmakers did
not borrow wholesale from Barbados as their fellow colonists in
South Carolina did.60 To a surprising degree, Virginia operated
without major legal precedents. Thus, the situation of blacks in early
colonial Virginia was, paradoxically, characterized by a degree of
ambiguity and variation that was unthinkable in the Spanish colonial
world.'
When, a full century after the first Africans arrived in Virginia,
the French sought a legal basis for slavery in Louisiana, they drew on
a different set of legal precedents-the 1685 slave code for French
colonies in the Caribbean, and the French experience of
administering slavery in those colonies-to draft the Louisiana Code
Noir of 1724.62 The 1685 Code Noir was drafted by high officials in the
Antilles based on the first fifty years of French experience with
slavery in its colonies. 63 Like Spanish law, it established certain
protections for slaves, including the right to observe Sundays free
58. See id. at 258.
59. Id. at 260.
60. See id.
61. See id. at 259-60, 264. Other colonies established in North America after Virginia
adopted slavery codes by borrowing and transplanting from slave systems that were up
and running already. Christopher Tomlins has argued that the "first explicit definition of
those who might be appropriately enslaved that was advanced by the English on the
American mainland" appeared in Nathaniel Ward's 1641 Body of Liberties. Christopher
Tomlins, Transplants and Timing: Passagesin the Creation of an Anglo-American Law of
Slavery, 10 THEORETICAL INQUIRIES L. 389, 394 (2009). Ward's definition borrowed from
Biblical principles and was codified in the Massachusetts Lawes and Libertyes in 1648. Id.
South Carolina adopted the slave code of Barbados almost verbatim when it passed "An
Act for the Better Ordering of Slaves" in 1690-1691. See id. at 396, 400. The Mid-Atlantic
states adopted similar regimes as well, between the 1690s and the 1710s, including
Barbados's slave courts. See id. at 412-19.
62. See Vernon Valentine Palmer, The Origins and Authors of the Code Noir, 56 LA.
L. REV. 363, 389-90 (1995); Guillaume Aubert, To Establish One Law and Definite Rules:
Race, Religion, and the Transatlantic Origins of the Louisiana Code Noir 1-2 (Apr. 4-5,
2008) (unpublished manuscript) (on file with the North Carolina Law Review).
63. See Alan Watson, The Origins of the Code Noir Revisited, 71 TUL. L. REV. 1041,
1041-42, 1055 (1997).
2013]
SLAVES, FREE BLACKS, AND RACE
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from work,' and the right to petition if masters did not feed, clothe,
and support them in accordance with the regulations.65 Masters over
the age of twenty had the right to manumit their slaves for any reason
and without permission,' and freedpeople gained all "the same
rights, privileges and liberties enjoyed by persons born free,"6
although they were also required to "retain a particular respect for
their former masters, their widows and their children," with any insult
"punished more severely tha[n] if it had been done to another
person." 8 This code was in force in St. Domingue, Martinique, and
Guadeloupe for nearly forty years before the colony of Louisiana was
established. By the time the French established Louisiana, they
already had a great deal of practice with the regulation of slaves, both
African and Indian.
Virginia stands out among the three colonies as the most
experimental and open with regard to the status of Africans in its
early years. Yet it is worth emphasizing not only the surprising effects
of legal precedents-in the opposite direction to what Tannenbaum
suggested-but also that by the early eighteenth century, all three
colonies had established firm racial distinctions through legal
regulation. While it took longer in Virginia, full slave codes were in
place by the turn of the eighteenth century.
II. BUILDING RACIAL DISTINCTIONS INTO LAW
In all three colonies, slaveholders set about trying to establish
"order" among their laborers from the time they transported Africans
to the New World. Yet the legal production of clear racial orders
proceeded at varying rates. Precisely because slaveowners in the
Iberian colonies operated within well-known cultural and legal
frameworks, their attempts to create racially segmented societies
were unremarkable and non-controversial. This was not as simple in
Virginia, with its smaller number of Africans and larger number of
Indians and indentured servants from England working alongside in a
system without well-established legal and cultural norms of race.
Louisiana fell somewhere in between. The colony was created a full
64. See John Garrigus, The "Code Noir" (1685), IND. U. Nw., http://www.iun.edu/
-histgkp/Code%20Noir.htm (last visited Mar. 17, 2013) (translating article six of the 1685
Code Noir).
65. See id. (translating article twenty-six of the 1685 Code Noir).
66. See id. (translating article fifty-five of the 1685 Code Noir).
67. Id. (translating article fifty-nine of the 1685 Code Noir).
68. Id. (translating article fifty-eight of the 1685 Code Noir).
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century later, with established legal precedents for slave regulation,
but a more complicated demographic situation.
Cuba"9
In the case of Havana, the efforts of local elites to establish racial
orders are evident as early as the documents are available. In the
1550s, when Havana was still a village with a very small population
and limited urban functions, the members of the town council were
already busy building into law differences that made "negros" and
"negras" a clearly separate, inferior social group.
To that end, the town councilors of Havana followed several
strategies. There were regulations that spoke about "negros"
generally, but were clearly aiming at slaves. For example, the cabildo,
or town council, issued an ordinance on January 28, 1554, after local
officials bemoaned that "some blacks, men and women" ("negros y
negras") lived in houses "separate from the house of their masters,"
where suspicious gatherings of blacks "and even Spaniards" took
place. 0 The cabildo ordered "that no black man or woman could
have his own house to live outside the houses of his master.""
Though the regulation did not directly reference slaves, the word
"masters" suggests it dealt primarily with them (although, as we shall
see, masters were sometimes mentioned with reference to freedmen
as well).72
But other regulations targeted "negros" of all social statuses. "In
this town," the town council complained in 1553, "some negras have
lodging houses and serve food and sell wine which is of great damage
A.
to this town .... [I]t is convenient to remedy it."" In 1561, the council
ordered collection of the weapons that "many negros of this town
have in their houses and estancias." 74 The council also forbade wine
sales to blacks in 1585 "given that there is little wine." 75 A 1612
69. Portions of the discussion in this subpart are substantially similar to a
corresponding portion contained in DE LA FUENTE, supra note 48, at 179-81.
70. DE LA FUENTE, supra note 48, at 179 (translating Jan. 28, 1584 ordinance); see also
1 MUNICIPIO DE LA HABANA, ACTAS CAPITULARES DEL AYUNTAMIENTO DE LA
HABANA 1566-1574, at 89 (1937) (Jan. 28, 1554 ordinance).
71. DE LA FUENTE, supra note 48, at 179 (translating Jan. 28, 1554 ordinance); see also
1 MUNICIPIO DE LA HABANA, supra note 70, at 89 (Jan. 28,1554 ordinance).
72. See DE LA FUENTE, supra note 48, at 179.
73. Id. (translating Jan. 9, 1553 ordinance); see also 1 MUNICIPIO DE LA HABANA,
supra note 70, at 75 (Jan. 9, 1553 ordinance).
74. DE LA FUENTE, supra note 48, at 179 (translating Jan. 9, 1561 ordinance); see also
1 MUNICIPIO DE LA HABANA, supra note 70, at 223 (Jan. 9,1561 ordinance).
75. DE LA FUENTE, supra note 48, at 179 (translating Jan. 1585 ordinance).
2013]
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regulation blocked the sales of meat outside the butcher shop to all
persons "of any quality or condition," but stipulated different
penalties for Spaniards than for "negras y mulatas."7 6 The same
strategy was evident in a 1550 regulation that prevented "negros"
from cutting trees around the town, under penalties of 300 lashes and
ten days in jail.
Still, other regulations delineated explicitly between enslaved
blacks and freed blacks. Despite the clear difference in social status,
however, the law established similar prohibitions and penalties to
both groups, a sign that race could trump freedom as a marker of
status and that the line separating freedmen from slaves could be
tenuous. One 1556 ordinance, for instance, made reference to "those
who have been recently manumitted" as "free slaves."78 A 1551
ordinance prohibited the sale of crabs and fruits to hired-out slaves
"and to any other negro."79 One in 1565 banned blacks "slave and
freed" from hunting cattle on their own.so Another in 1570 forbade
black "freedwomen and captives" from selling wine." In 1589, a
regulation stipulated that those selling corn tortillas at unfair prices
"being the person slave or black should be jailed until her master"
paid a penalty.' A 1599 ordinance prohibited "negras captives and
freed" from going to the estancias to make a living.' One in 1621
stipulated that no black, either "captive or freedman" was allowed to
sell meat in the streets under penalty of 200 lashes.'
Finally, some regulations limited the actions of "negros horros,"
or free blacks, specifically. One in 1565 prohibited free blacks from
hosting slaves in their homes." A 1603 ordinance against vagrancy
ordered all "mulatto youngsters and freedmen to take on a master in
76. Id. (translating Nov. 1612 ordinance).
77. DE LA FUENTE, supra note 48, at 180 (translating Sept. 12, 1550 ordinance); see
also 1 MUNICIPIO DE LA HABANA, supra note 70, at 7 (Sept. 12,1550 ordinance).
78. Id. at 180 (translating Feb. 8, 1556 ordinance); see also 1 MUNICIPIO DE LA
HABANA, supra note 70, at 110 (Feb. 8, 1556 ordinance).
79. DE LA FUENTE, supra note 48, at 180 (translating June 19, 1551 ordinance); see
also 1 MUNICIPIO DE LA HABANA, supra note 70, at 28 (June 19, 1551 ordinance).
80. DE LA FUENTE, supra note 48, at 180 (translating Aug. 22, 1565 ordinance); see
also 1 MUNICIPIO DE LA HABANA, supra note 70, at 286 (Aug. 22, 1565 ordinance).
81. DE LA FUENTE, supra note 48, at 180 (translating Sept. 2, 1570 ordinance); see also
2 MUNICIPIO DE LA HABANA, supra note 70, at 202 (1939) (Sept. 2,1570 ordinance).
82. DE LA FUENTE, supra note 48, at 179 (translating Oct. 1589 ordinance).
83. Id. at 180 (translating July 1599 ordinance).
84. Id. (translating Feb. 1621 ordinance).
85. Id. (discussing Nov. 23, 1565 ordinance); see also 1 MUNICIPIO DE LA HABANA,
supra note 70, at 296 (Nov. 23, 1565 ordinance).
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the following month" and settle in farms.16 It is notable that this
regulation placed "freedmen" and "masters" in the same sentenceanother example of the authorities' desire to reduce the social
distance between slaves and freedmen. 7 Another one in 1623
restricted a freedwoman's ability to wear gold and silk, two materials
that members of the elite viewed as worn by them alone."
Taken as a whole, these local laws discriminated against, and
diminished the freedom of, both free and enslaved blacks. Free blacks
in particular were barred from certain economic activities, kept away
from some forms of consumption, and assessed penalties that were in
many cases as stiff as those suffered by slaves. Though the cabildo
mostly lacked enforcement power over its regulations-hence their
repetition-every new ordinance reinforced the image that blackness
was inexorably associated with slavery and inherently dishonorable.
Every piece of local legislation contributed to the formation of a
racial knowledge that would become one of the central traits of the
Atlantic system and a defining element in Cuba's history."
The local authorities' goal of linking race (blackness) and status
(slavery) together was exemplified in 1557. That year, Havana's
emerging local elite attempted to expel all freed people of color from
the town.90 Alleging that freed people's presence was "damaging," the
town council sought "to throw them out and banish them from this
town and Island."91 Free blacks certainly resisted with some success,
but many of the details of the legal process are unknown. We know
that the Audiencia de Santo Domingo heard the case, found against
the cabildo, and condemned it for the expenses of the trial. Not only
were the free blacks vassals, however low, of the Spanish crown, but
the cabildo's proposal took place when royal policy was to populate
Havana at almost any cost.92
86. DE LA FUENTE, supra note 48, at 180 (translating Jan. 1603 ordinance).
87. Id.
88. Id. (discussing June 1623 ordinance).
89. See id.
90. See id. at 181 (translating Apr. 23, 1557 ordinance); see also 1 MUNICIPIO DE LA
HABANA, supra note 70, at 150 (Apr. 23, 1557 ordinance).
91. DE LA FUENTE, supra note 48, at 181 (translating Nov. 26, 1565 ordinance); see
also 1 MUNICIPIO DE LA HABANA, supra note 70, at 297 (Nov. 26, 1565 ordinance).
92. See DE LA FUENTE, supra note 48, at 181 (translating Nov. 1577 ordinance); see
also id. at 83-85 (discussing the Crown's desire to increase Havana's population and
subsequent policies to that end).
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B.
Virginia
In a marked contrast to the Iberian colonies, evidence regarding
the status of Africans in early Virginia is tantalizing in its silence.
From other records, we know that Africans, Indians, Irish, and other
Europeans worked alongside one another as servants. People appear
in legal records designated as "negroes" who were free or became
free after some years of service, so we know that people of African
descent were not all slaves, and slaves were not all of African descent.
Yet much of the evidence is ambiguous. How should we interpret the
absence of a racial designation in the records, or the decision to
exempt someone from a particular statute, or to give him a different
sentence for a similar crime? Given the paucity of records, such
interpretive decisions have carried great weight among historians.
The first mention of a "negro" in an extant document from
Virginia appeared in 1620 letter noting that "20[] and Odd Negroes"
had been brought by a Dutch man of war and bought for a good
price.93 This observation does not settle whether those twenty ended
up as slaves for life or merely servants for a term. Some slaves were
clearly freed by virtue of being Christian. For example, in 1624 the
General Court of Virginia ruled that "John Philip A negro" was
qualified as a free man and Christian to give testimony, because he
had been "[c]hristened in England 12 years since."94 In 1630, the same
court sentenced Hugh Davis to whipping for "abusing himself to the
dishonor of God and shame of Christianity by defiling his body in
lying with a negro," without mentioning the sex or status of the
"negro."95 Nevertheless, it is worth noting that only "negroes" or
"Indians" had any notation of racial status at all; whites were
mentioned by name without a racial designation, or by nationality, in
itself an indication of a distinction between whites and others.
The first statute to mention "negroes" was a 1639 act excluding
them from a state subsidy for arms and ammunition. 96 Some
historians have emphasized this act as drawing a clear racial
distinction between "negroes" and others," but the language of the
93. 3 THE RECORDS OF THE VIRGINIA COMPANY OF LONDON 243 (Susan Myra
Kingsbury ed., 1933).
94. MINUTES OF THE COUNCIL AND GENERAL COURT OF COLONIAL VIRGINIA 33
(H.R. Mcllwaine ed., 2d ed. 1979) (minutes from Nov. 30, 1624) (emphasis omitted).
95. Id. at 479 (minutes from Sept. 17, 1630).
96. See Act of Jan. 6, 1639, act 10 (1639), in 1 THE STATUTES AT LARGE: BEING A
COLLECTION OF ALL THE LAWS OF VIRGINIA 226, 226 (William Waller Hening ed., New
York, R. & W. & G. Bartow 1823) [hereinafter LAWS OF VIRGINIA].
97. See, e.g., WINTHROP D. JORDAN, WHITE OVER BLACK: AMERICAN ATTITUDES
TOWARD THE NEGRO 1550-1812, at 78 (1969).
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statute does not justify such a conclusion. The Act of 1639 directed
that "all masters of families . . . use their best endeavours for the
firnishing of themselves and all those of their families which shall be
capable of arms (excepting negroes) with arms both offensive and
defensive."98 As historians Timothy Breen and Stephen Innes have
pointed out, the statute neither prevented all blacks from bearing
arms nor made it illegal for blacks to engage in offensive or defensive
warfare: "The [1639] law seems to have been an ad hoc decision
related more directly to taxation than to domestic security," and the
legislature did not consider the question of blacks bearing arms again
for another two decades.99
The General Court of Virginia handed down several more
ambiguous decisions in 1640. In that year, three of Hugh Gwyn's
servants were punished for running away together. 00 Two Europeans,
a Dutchman and a Scotchman, were each sentenced to a term of
additional years, while "negro ... John Punch" was sentenced to
serve for his natural life.'01 A few weeks later, servants of Captain
William Pierce plotted to run away."10 Christopher Miller, identified
as a Dutchman, was sentenced to whipping, branding with a letter
"R," working with a shackle on his leg for one year, and giving an
additional seven years of service; Peter Wilcocke was sentenced to
whipping, branding, and giving three years of additional service;
Richard Cookson, giving an additional two and a half years of service;
Andrew Noxe, whipping; and John Williams, working seven
additional years. 10' The only servant who was named with a racial
label, "Emanuel the Negro," was sentenced to whipping, branding,
and working with a shackle on his leg for at least one year.10
How can we interpret these sentences? It is certainly plausible to
infer that there was already developing a presumption that Africans
would serve their masters for life while Europeans would serve only
for a period of years, but that is not the only possible conclusion.
Although it was possible that only Emanuel was already serving
98. T.H. BREEN & STEPHEN INNES, 'MYNE OWNE GROUND': RACE AND FREEDOM
ON VIRGINIA'S EASTERN SHORE, 1640-1676, at 26 (25th Anniversary ed. 2005) (quoting
Acts of General Assembly, Jan. 6, 1639-40 (pt. 2), 2 WM. & MARY Q. 145, 147 (2d ser.
1924)).
99. Id. at 26.
100. See MINUTES OF THE COUNCIL AND GENERAL COURT OF COLONIAL VIRGINIA,
supra note 94, at 466 (minutes from July 9, 1640).
101. Id.
102. Id. at 467 (minutes from July 22, 1640).
103. See id.
104. Id.
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Captain Pierce for life, Christopher Miller, the Dutchman, received
almost an identical sentence to Emanuel, Andrew Noxe received only
a whipping, and one other servant, Richard Hill, got off on good
behavior.105 Thus, we have clear evidence that people designated as
"negroes" as well as those identified by European nationality or
unidentified by race (and therefore presumably accepted as white)
ran away together or conspired to run away together, along with
ambiguous evidence that "negroes" may have been viewed as more
appropriately serving their masters for life rather than for a period of
years. This interpretation grows stronger when read in light of later
statutes that make direct reference to cases where negroes could not
serve additional years because they were already serving for life.'06
Yet there continued to be cases in the records of free "negroes,"
such as "Graweere[,] ... a negro servant" allowed by his master to
live as free, whose child was decreed free in 1641.101 In 1655, there is a
brief note of a "[m]ulatto held to be a slave and appeal taken,"'o as
well as a woman servant who became free if her master consented to
her marriage.'" In 1668, the court noted another "[j]udgment for a
negro for her freedom,""o and in 1672, "a Negro man," Edward
Mozingo, became free after his indenture was completed."'
A case briefly noted in 1669 hints at the multiple dimensions of
racial status in colonial Virginia, yet leaves many questions
unanswered: "Hannah Warwick's case extenuated because she was
overseen by a negro overseer."112 From this single sentence, we do not
even know what Hannah Warwick's crime was. Because Hannah's
racial status was not noted, it is likely that she was white; on one
hand, we observe that it was possible for a white servant to work
under a negro, while on the other hand, the extenuation of her case
suggests a belief that a white person working under a "negro" was a
violation of the natural racial order. But the sparse records do not
allow us to draw firm conclusions.
105. See id.
106. See English Running Away with Negroes, act 22 (1660-1661), in 2 LAwS OF
VIRGINIA, supra note 96, at 26, 26 ("[I]n case any English servant shall run away in
company with any negroes who are incapable of makeing satisfaction by addition of time,
... the English so running away in company with them shall serve for the time of the said
negroes absence as they are to do for their owne by a former act.").
107. MINUTES OF THE COUNCIL AND GENERAL COURT OF COLONIAL VIRGINIA,
supra note 94, at 477 (minutes from Mar. 31, 1641).
108. Id. at 504 (minutes from Mar. 12, 1655).
109. See id.
110. Id. at 513 (minutes from Sept. 24, 1668).
111. Id. at 316 (minutes from Oct. 5, 1672).
112. Id. at 513 (minutes from Apr. 23, 1669).
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The connections between race and status began to be drawn
more clearly after 1660. As many as one third of the people of color
in some Virginia counties in the late seventeenth century were free,"'
and white elites increasingly feared political alliances among white
indentured servants, blacks, and Indians." 4 As in Havana or the
Iberian colonies more generally, the colonial elites of Virginia sought
to identify blacks with slavery and to restrict the social opportunities
of free blacks as much as possible. The first direct reference to
"negroes" as slaves in Virginia legislation appeared in a 1659 statute
imposing reduced import duties on slave merchants.' In 1662, the
General Assembly made clear that slave or free status would follow
the condition of the mother:
Whereas some doubts have arisen whether children got by any
Englishman upon a negro woman should be slave or free, Be it
therefore enacted and declared by this present grand assembly,
that all children borne in this country shalbe held bond or free
only according to the condition of the mother, And that if any
christian shall commit fornication with a negro man or woman,
hee or shee soe offending shall pay double the fines imposed by
the former act.116
The first clear statutory racial distinction among free people was a
1668 law proclaiming that "negro" women were not exempted from
the head tax because, though free, they "ought not in all respects to
be admitted to a full fruition of the exemptions and impunities of the
English.""' As historian Kathleen Brown has argued, these first laws
engendered racial difference by designating different consequences
for production and reproduction by black and white women."'
113. See PHILIP D. MORGAN, SLAVE COUNTERPOINT: BLACK CULTURE IN THE
EIGHTEENTH-CENTURY CHESAPEAKE AND LOWCOUNTRY 11-12 (1998) ("[Firee blacks
in late-seventeenth-century Virginia seem to have formed a larger share of the total black
population than at any other time during slavery. In some counties, perhaps a third of the
black population was free in the 1660s and 1670s.").
114. See id. at 308, 477; see also EDMUND S. MORGAN, AMERICAN SLAVERY,
AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 155, 328 (1975).
115. See An Act for the Dutch and All Other Strangers for Trading to This Place, act
16 (1659), in 1 LAWS OF VIRGINIA, supra note 96, at 540, 540.
116. BROWN, supra note 56, at 132 (quoting Negro Womens Children to Serve
According to the Condition of the Mother, act 12 (1662), in 1 LAWS OF VIRGINIA, Supra
note 96, at 170, 170).
117. Negro Women Not Exempted from Tax, act 7 (1668), in 2 LAWS OF VIRGINIA,
supra note 96, at 267, 267.
118. See BROWN, supra note 56, at 108,133.
2013]
SLAVES, FREE BLACKS, AND RACE
1721
In 1670, the Virginia legislature made clear that even baptized
slaves would not be "exempt ... from bondage,"ll9 severing the link
between Christianity and freedom. A restriction was added on
"negroes," regardless of status, by the provision that "noe negroe or
Indian though baptised and enjoyned their owne freedome" would be
allowed to buy Christians, although they could buy "any of their owne
nation."12 0 Finally, the legislature clarified that non-Christian servants
who arrived in the colony "by shipping" became slaves for life,
whereas those who arrived by land-namely, Indians-would be
indentured servants. 12 1
In 1672, Virginia's first comprehensive act for apprehending and
suppressing runaways, "negroes," and slaves was passed. 122 It included
a reward to neighboring Indians for apprehending runaways, as well
as indemnifying masters whose servants were taken or killed. 123 The
law allowed "any person who shall endeavour to take them, upon the
resistance of such negroe, molatto, Indian slave, or servant for life, to
kill or wound him or them soe resisting" and provided that the person
who kills a runaway "shall not be questioned." 124
This Virginia law still distinguished several categories of slaves
and servants, but by the 1680s, when the first major slave codes in the
North American colonies were approved, "negroes" were singled out
as a separate group. The codes drew numerous distinctions on the
basis of race rather than status, including laws against carrying armssimilar to those approved by the town council of Havana a century
earlier-and against leaving the owner's plantations without a
certificate. A penalty of thirty lashes met "any Negro" who "lift[ed]
up his hand . . . against any christian."l 25 Furthermore, a 1705 Virginia
law decreed that
all servants imported and brought into this country, by sea or
land, who were not christians in their native country, (except
Turks and Moors in amity with her majesty, and others that can
119. An Act Declaring that Baptisme of Slaves Doth Not Exempt Them from
Bondage, act 3 (1667), in 2 LAWS OF VIRGINIA, supra note 96, at 260, 260.
120. Noe Negroes nor Indians to Buy Christian Servants, act 3 (1670), in 2 LAWS OF
VIRGINIA, supra note 96, at 280, 281.
121. See What Tyme Indians to Serve, act 12 (1670), in 2 LAWS OF VIRGINIA, supra
note 96, at 283, 283.
122. See An Act for the Apprehension and Suppression of Runawayes, Negroes and
Slaves, act 8 (1672), in 2 LAWS OF VIRGINIA, supra note 96, at 299, 299.
123. See id. at 299-300.
124. Id. at 299.
125. An Act for Preventing Negroes Insurrections, act 10 (1680), in 2 LAWS OF
VIRGINIA, supra note 96, at 481, 481.
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make due proof of their being free in England, or any other
christian country, before they were shipped, in order to
transportation hither) shall be accounted and be slaves, and
such be here bought and sold notwithstanding a conversion to
christianity afterwards.12 6
The law established that a slave's mere presence in England,
without proof of his manumission, was insufficient to free him. 127
Perhaps most significantly, the legislature in 1705 also passed a series
of laws establishing rights for white servants, increasing the legal
distinctions between white servants and people of color, whether
slave or free.128
In sum, racial differentiation took hold only gradually in
seventeenth-century Virginia. There were three mechanisms for racial
formation: regulations of sexual conduct and reproduction, laws
distinguishing negroes from Indians, and statutes severing racial
status from religion. Together, this legislation helped firmly establish
African slavery in the legal system. The tobacco economy guaranteed
that the institution would grow. Between 1700 and 1740, the number
of slaves grew tenfold to 60,000,129 and by the time the first census was
taken in the new republic in 1790, slaves made up 44% of the
population of Virginia.130
C.
Louisiana
In Louisiana, slaves arrived with the first French settlers. By the
time of the 1726 census, there were a total of 1385 black slaves, 159
Indian slaves, 1663 "habitants," or French citizens, 245 "engag6s," or
indentured servants, and 332 military personnel in the colony,13 '
126. An Act Concerning Servants and Slaves, ch. 49, § 4 (1705), in 3 LAWS OF
VIRGINIA, supra note 96, at 447, 447-48 (William Waller Hening ed., Phila., Thomas
Desilver 1823).
127. See id. §6, at 448.
128. The 1682 legislature enacted a law providing that "all servants not being
christians" when purchased would be slaves. See An Act to Repeale a Former Law
Making Indians and Others Free, act 1 (1682), in 2 LAWS OF VIRGINIA, supra note 96, at
490, 490-91. Then in 1705, the legislature made a number of updates, providing, for
example, that it was not permissible to "whip a christian white servant naked," and that if
those deemed "infidels ... notwithstanding, purchase any christian white servant," then
the white servant would instantly be relieved of service. An Act Concerning Servants and
Slaves, ch. 49, §§ 7, 11 (1705), in 3 LAWS OF VIRGINIA, supra note 96, at 448, 450 (William
Waller Hening ed., Phila., Thomas Desilver 1823).
129.
PHILIP J. SCHWARTZ, TWICE CONDEMNED: SLAVES AND THE CRIMINAL LAWS
OF VIRGINIA, 1705-1865, at 62 (1988).
130. Id.
131.
RICHARD MIDDLETON & ANNE LOMBARD, COLONIAL AMERICA: A HISTORY
TO 1763, at 392-93 (4th ed. 2011).
2013]1
SLAVES, FREE BLACKS, AND RACE
1723
although substantial numbers of slaves did not live in New Orleans
until after 1732. Almost from the start, African slaves became the
major labor force in the colony, unlike the Chesapeake, which had
substantial numbers of white and Indian servants. 132 Blacks were a
majority throughout the French period, and slavery was the major
basis of wealth.
Almost as soon as the colony was established, the Crown
promulgated a revised version of the colonial "Black Code," or Code
Noir, for Louisiana, in 1724. The new code included a number of
changes from the 1685 original, based on concerns that had arisen in
the intervening forty years, particularly regarding uprisings in the
colonies. The fear that freedmen might ally with whites to rebel led to
a ban on interracial marriage that was not in the original Code
Noir.113 In addition, even free blacks were forbidden to "live in a state
of concubinage" with slaves.134 Manumission required permission of
the Superior Council, and the master had to be twenty-five years
old,1"s whereas in the 1685 Code, any master twenty years old could
manumit a slave without reason given. 136 Additional provisions
elaborated criminal regulations for slaves3 7 as well as free blacks who
abetted fugitive slaves."'
In 1751, a set of police regulations was issued by the governor to
control the actions of both masters and slaves. 139 Like previous
regulations in Havana and Virginia, it eliminated distinctions between
slaves and blacks, claiming that "every individual ... should punish
his Negroes with moderation." 4 0 The new regulations aimed at
limiting the market activities of slaves, but also subordinating all
"negroes," whether free or enslaved, to all white men in a variety of
ways. "Negroes or Negresses" were not allowed to assemble "under
the pretext of dancing, or for any other cause"; 14 1 to be in the streets
132. For more about the comparison between the labor forces of these colonies, see
generally MORGAN, supra note 114.
133. See A Translation of the Black Code of Louisiana, reprinted in 3 HISTORICAL
COLLECTIONS OF LOUISIANA 89, 89 (New York, D. Appleton & Co. 1851) (translating
article six of the 1724 Code Noir).
134. Id. at 90 (translating article six of the 1724 Code Noir).
135. See id. at 94 (translating article fifty of the 1724 Code Noir).
136. See Garrigus,supra note 64 (translating article fifty-five of the 1685 Code Noir).
137. See A Translation of the Black Code of Louisiana, supra note 133, at 92-93
(translating articles twenty-six through thirty-nine of the 1724 Code Noir).
138. See id. at 93 (translating article thirty-four of the 1724 Code Noir).
139. See 2 CHARLES GAYARRI, HISTORY OF LOUISIANA 53-55 (New Orleans,
Armand Hawkins, 3d ed. 1885).
140. See id. app. at 364 (article nineteen of Louisiana's police regulations).
141. Id. (article twenty of Louisiana's police regulations).
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NORTH CAROLINA LAW REVIEW
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or public roads carrying a cane or stick or without a pass;142 or to be
"insolent" to white people. 143 Any white person who met a black
person in public without a pass, or carrying a stick, or considered the
black person insolent in any way, was exhorted to whip the slave, or
even to have him branded with a fleur de lis on his backside. 144
In other words, the 1724 code and the 1751 regulations were
designed to shore up a regime of racial hierarchy, with all whites on
top and all blacks on the bottom. As Thomas Ingersoll has written,
"The main intent and effect of legal distinctions between the races
embodied in these laws were the same as in Virginia: few blacks were
freed, and those who were freed remained under social and legal
disabilities."1 45 By the time Louisiana changed hands from the French
to the Spanish in 1763, racial distinctions had been firmly established
in the colony through regulations that limited the reach of
manumission, and created distinct rules for "negros" and "freed or
free-born negros."
Although colonial elites in all three jurisdictions sought to create
social orders built on clear and fixed racial distinctions produced
through law, they had varying degrees of success. With the tools of
Castilian and French Caribbean legal precedents, legislators in
Havana and Louisiana were able to build racial distinctions into their
laws rather quickly, whereas Virginians took longer to establish clear
racial lines. However, by the end of the seventeenth century, racial
distinctions were built into law in all three jurisdictions. Demography
also made a difference. In Virginia and Louisiana, the presence of
Indians and the real possibility of maroon blacks allying with Indians
against the colonists meant an unrulier frontier in the early years,
muddying racial distinctions. Yet legislators were also able to use
legal regulation to shape demography, as we describe in the next
section.
III. MANUMISSION, FREE PEOPLE OF COLOR, AND THE LAW
Efforts to permanently identify blackness with slave status took
place in all three locations, but Virginia was the most successful,
followed by Louisiana, and finally Cuba. This section of the Article
analyzes how legal regimes regarding slaves' access to freedom
evolved in each of these jurisdictions over three eras: the formative
142. See id. app. at 365 (article twenty-three of Louisiana's police regulations).
143. Id. app. at 366 (article twenty-eight of Louisiana's police regulations).
144. See id. app. at 364-66.
145. Thomas N. Ingersoll, Free Blacks in a Slave Society: New Orleans 1718-1812, 48
WM. & MARY Q. 173, 179 (3d ser. 1991):
2013]
SLAVES, FREE BLACKS, AND RACE
1725
period up to about 1760; the Age of Revolution, from the 1770s to the
1820s; and the nineteenth century. Manumission was a marker of how
closely racial identity would be associated with slave or free status in
a given society, and it became directly correlated with the size of the
community of free people of color. Important distinctions developed
during the formative period. Whereas Spanish legal practices and
precedents gave manumission a solid legal footing in Havana,
legislators in Virginia began to place significant limitations on
manumission beginning in the late seventeenth century. Some
limitations existed in Louisiana as well, but the colony remained a
frontier post for most of the eighteenth century. Opportunities for
manumission increased in all three jurisdictions during the Age of
Revolution, but divergences increased again in the nineteenth
century. Manumission became limited in Virginia as soon as 1806 and
was curtailed significantly in the 1830s and 1840s. Restrictions
increased in Louisiana as well, but slaves continued to invoke Spanish
and French legal precedents to press claims for freedom with some
success. Meanwhile, well-entrenched legal customs and principles
concerning manumission continued to operate in Cuba, despite the
development of a sugar plantation economy in that island.
A.
The FormativePeriod-Beginningsto the 1760s
As we have seen up to this point, colonial elites in Havana, New
Orleans, and Virginia all sought to create a social order built on clear
and fixed racial distinctions protected by law. Although legal
precedents regarding colonial slavery, and differences in the
distribution of power within each colonial system, gave more tools to
embed race within the law to Spanish and French colonial lawmakers
than to British colonists, the Spanish and French also found
themselves constrained in other ways-notably by the legal avenues
to freedom for slaves under Spanish law.
The Mediterranean legal culture provided local elites with the
tools and language to create racial hierarchies, but it had another
important consequence: the legal regime enabling manumission
helped to create a demographic situation that undermined the very
racial order put into place by the statutes detailed above.
Opportunities for manumission were always limited, but the
possibility of escaping slavery was well-entrenched in Iberian slaving
practices and in Castilian law. Although masters were not compelled
legally or morally to grant freedom to their slaves, manumission was
considered a pious act, and its legitimacy never questioned.
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Furthermore, the law protected the practice of self-purchase, and
slaves had a legal right to bring freedom claims before the justices.
More important, these principles were ratified in subsequent
legislation. A real cidula, or decree, of 1529 asked the Governor of
Cuba whether it was expedient to give freedom to slaves after they
had served some time lind paid a given amount.14 6 When the King was
informed that many soldiers in Havana had fathered children with
slaves during the late 1500s, he quickly instructed that these soldiers
be given preference in any sales "if" their intention was to liberate
them.147 The Crown also reiterated the slaves' right to initiate a legal
process for their freedom.148
Purchasing freedom was facilitated by a legal custom which
developed in at least some of the Spanish colonies, and perhaps in the
Peninsula itself, since the sixteenth century: coartaci6n. Through
coartaci6n slaves were allowed to agree with their masters on a fixed
price for their freedom and to make payments towards it. 14 In other
words, slaves could buy their freedom through installments. Such
agreements were legally binding and restricted the master's capacity
to dispose of the slave in several important ways. A slave who had
paid a fraction of the price could not be mortgaged or sold for a
higher value.s 0 Furthermore, slaves claimed that after paying a
portion of their price they had also acquired control over a similar
portion of their time and labor thus becoming, in fact, partially free.'
These regulations, which could not be superseded or supplanted
by local legislative initiatives, significantly curtailed the ability of
Spanish colonial elites to construct the neat, dichotomous social order
146. See R. Carta a la Audiencia Real de las Indias Sobre el Tratamiento de los
Esclavos Negros (Nov. 9, 1526), in 1 COLECCION DE DOCUMENTOS PARA LA HISTORIA
DE LA FORMACION SOCIAL DE HISPANOAMtRICA 1493-1810, at 88 (Richard Konetzke
ed., 1953)
147. See R.C. Sobre la Venta de los Hijos de Soldados que Tuvieren en Esclavas
Negras de la Isla de Cuba (Mar. 31, 1583), in 1 COLECCION DE DOCUMENTOS PARA LA
HISTORIA DE LA FORMACION SOCIAL DE HISPANOAMtRICA 1493-1810, supra note 146,
at 547.
148. For example, the Crown passed an act on April 15, 1540, that commanded
audiences to hear cases of blacks who claimed to be free. See 2 RECOPILACION DE LEYES
DE LOS REINOS DE LAS INDIAS 362 (Madrid, 4th ed. 1791).
149. See Frederick P. Bowser, The Free Person of Color in Mexico City and Lima:
Manumission and Opportunity, 1580-1650, in RACE AND SLAVERY IN THE WESTERN
HEMISPHERE: QUANTITATIVE STUDIES 331, 338-46 (Stanley L. Engerman & Eugene D.
Genovese eds., 1975) (discussing the many ways slaves were manumitted, including
payments to their masters).
150. See id at 344.
151. See id at 346.
2013]
SLAVES, FREE BLACKS, AND RACE
1727
that many of them envisioned.'52 By the late sixteenth century,
significant communities of free blacks and mulattoes existed in all
major colonial cities, from Lima to Mexico. 5 3 In Havana, despite the
town council's efforts, free blacks represented about 10% of the city's
fast-growing population around 1600.154 In a local ordinance approved
in 1574, free blacks were described as numerous and catalogued as
"vecinos," that is, as legal heads of established households.' As such,
they participated in many of the duties and shared in some of the
honors associated with military service. They helped in nightly
watches to spot enemy vessels, particularly in times of war, and had
their own company in the militias, which was placed under the
command of a black officer. They also participated in the local
economy mostly as salaried workers, but also as small owners of land,
businesses, and houses. It is worth mentioning that in the early 1600s
the free colored community of Havana was wealthy enough to sustain
two confraternities, those of Our Lady of the Remedies and the Holy
Spirit. 5 6 The latter would eventually become a separate parish several
decades later.'
In Louisiana, the population of free people of color who were
counted by the census never went above 200 people during the
152. See HERMAN L. BENNETr, AFRICANS IN COLONIAL MEXICO: ABSOLUTISM,
CHRISTIANITY, AND AFRO-CREOLE CONSCIOUSNESS, 1570-1640, at 3-4 (2003)
(discussing the "absolutist" Spanish monarchy, which wanted a "prominent role" in
governing the colonies and its people, including slaves).
153. See Bowser, supra note 149, at 334-39 (discussing the increasing free black and
mulatto populations of Lima and Mexico City that resulted from manumission). On the
development of communities of free people of color in Latin America, see Lyman L.
Johnson, "A Lack of Legitimate Obedience and Respect": Slaves and Their Masters in the
Courts of Late Colonial Buenos Aires, 87 HISP. AM. HIST. REV. 631, 631-34 (2007)
[hereinafter Johnson, Slaves and Their Masters]; Lyman L. Johnson, Manumission in
Colonial Buenos Aires, 1776-1810, 59 HISP. AM. HIST. REV. 258, 261-62 tbl. 1 (1979)
(displaying major cities and their respective numbers of manumitted negroes and
mulattoes); Frank "Trey" Proctor III, Gender and the Manumission of Slaves in New
Spain, 86 HISP. AM. HIST. REv. 309, 310-11 tbls. 1 & 2 (2006) (displaying slave
populations by gender and age for cities including Lima and Mexico City); Stuart B.
Schwartz, The Manumission of Slaves in Colonial Brazil: Bahia, 1684-1745, 54 HISP. AM.
HIST. REV. 603, 611-12 (1974) (noting the numbers of manumitted blacks and mixed race
peoples in Brazil).
154. See DE LA FUENTE, supra note 48, at 174-75.
155. Ordenanzas Municipales de Alonso de Cdceres, in 2 LEVI MARRERO, CUBA:
ECONOMIA Y SOCIEDAD 429, app. at 437 (1974); see also DE LA FUENTE, supranote 48, at
82 (specifying that "vecinos" means households).
156. See DE LA FUENTE, supra note 48, at 168.
157. See id at 169.
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NORTH CAROLINA LAW REVIEW
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French period (1724-1763),'
although there were a significant
number of maroons or runaway slaves living among the Indians.159
The restrictions on manumission placed by the 1724 Code Noir, as
well as the ban on intermarriage, 60 which limited manumissions of
families, kept this population relatively small.16' Nevertheless,
interracial relationships continued, and the records of the Superior
Council are filled with examples of manumissions, including some
that are clearly based on self-purchase.162 For example, in 1739,
"[n]egroes Louis and Catharine, acting also for their fellow slaves
Jeanne Marguerite, Baptiste, and 'little Louis'; as likewise for
mulattoes Pierre, Marianne and Francoise," petitioned the Superior
Council for a copy of their late master's will because he had
"promised them their liberty."l6 3 The manumission was confirmed
two days later by Governor Bienville and Intendant Salmon after an
examination of the will.16 In 1741, Pantalon, a "negro slave,"
petitioned the council for his freedom based on his master's will,
provided that he pay the price "at which he and his family [would] be
appraised."165 They were appraised at "3000 livres."1 66 A Mr. Fabry
pledged himself as security for the 3,000 livres, and Pantalon, his wife,
and children were set free. 1 67 Governor Bienville himself freed an
enslaved couple in recognition of twenty-six years of service in
158. See generally GWENDOLYN MIDLO HALL, AFRICANS IN COLONIAL LOUISIANA:
THE DEVELOPMENT OF AFRO-CREOLE CULTURE INTHE EIGHTEENTH CENTURY (1995)
(outlining various census figures of free people of color throughout the French period).
159. See id. at 203, 214, 236, 307 (noting instances of the presence of maroons and
runaway slaves).
160. See A Translation of the Black Code of Louisiana, supra note 133, at 89
(translating article six of the 1724 Code Noir).
161. See supra Part II.C.
162. See, e.g., Heloise H. Cruzat, Records of the Superior Council of Louisiana XXV, 8
LA. HIST. Q. 118,143 (1925) (granting petition for "[mjanumission of Marie Charlotte and
Louise, her small daughter, by their master, St. Pierre ... for the services rendered him by
said slave"); G. Lugano, Records of the Superior Council of LouisianaLXXXIV, MarchApril, 1762, 23 LA. HIST. Q. 889, 924 (1940) (granting slaveowner a petition "wishing to
recognize the faithful services of a negress named Mimi," when he "decided to set her
free, so that she may enjoy her freedom like the other affranchised subjects of his
Majesty"); Records of the Superior Council of Louisiana XVI, 5 LA. HIST. Q. 377, 403
(1922) (granting slaveowner petition "to be authorized to free a negress named Jeanneton,
in reward for her zeal and fidelity in his service").
163. Records of the SuperiorCouncil of Louisiana XIX, 6 LA. HIST. Q. 283, 303 (1923).
164. See id. at 304.
165. Heloise H. Cruzat, Records of the Superior Court of Louisiana LXII, 18 LA. HIST.
Q. 430, 440 (1935).
166. Id.
167. See id.
2013]1
SLAVES, FREE BLACKS, AND RACE
1729
1733.11 There is also considerable evidence of "unenforced" and
unsanctioned manumission."'
At the end of the French period, Louisiana was still a small
frontier outpost and not yet a plantation society. It remained a place
of considerable social mixture, including "an underclass with origins
in three continents representing at least seven different types of legal
status .... To those newly arrived from Europe, New Orleans looked
like a carnival town, always threatening to turn upside down."' 70
Although the population of free people of color was not large, blacks
played important military roles in Indian wars, and a significant
number were freed for their service in the Natchez War between
1729-1731.11 An African named Louis Congo was named the
colony's executioner in 1725,172 and it was not uncommon to use free
blacks to punish slaves, or even white or Indian servants or
runaways. 173
In colonial Virginia, the population of free people of color
reached its peak as a percentage of the total population in the late
seventeenth century, and legislators responded by circumscribing
manumission in law and practice.'7 4 After several decades in the
seventeenth century during which poor whites, Indians, and Africans
mixed and their status as free or unfree remained relatively unclear,
Virginian elites sought to drastically curtail opportunities for
collusion among these groups at the end of the seventeenth century.7
Edmund Morgan, in his influential history book, American Slavery,
American Freedom, argued a generation ago that Bacon's Rebellion
in 1676 led to the hardening of racial distinctions in Virginia." 6
Whether he is right that the rebellion was the key turning point, it is
certain that the late seventeenth century saw several important legal
168. See Records of the Superior Council of Louisiana XV, 5 LA. HIST. Q. 239, 250
(1922). Almost two years later, the wife to whom Governor Bienville granted freedom
petitioned the government to confirm and approve her freedom. See id. at 265.
169. SHANNON LEE DAWDY, BUILDING THE DEVIL'S EMPIRE: FRENCH COLONIAL
NEW ORLEANS 181 (2009).
170. Id. at 143.
171. See CARLA. BRASSEAUX ET AL., CREOLES OF COLOR IN THE BAYOU COUNTRY
3 (1994).
172. See DAWDY, supra note 169, at 189-91 (discussing Congo's time as executioner);
see also Records of the Superior Court of Louisiana X, 3 LA. HIST. Q. 403, 414 (1920)
(describing a "murderous attack" on Congo by "three runaway savages").
173. See DAWDY, supra note 169, at 200-01.
174. See MORGAN, supra note 113, at 11-12,15.
175. See id. at 8-9, 14.
176. See MORGAN, supra note 114, at 269-70.
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shifts. In 1691, an act was passed "for suppressing outlying slaves," 7 1
which included stringent punishments for runaways and rewards for
those who apprehended them; penalties for bastardy by
Englishwomen with "negroes" or mulattoes; and the requirement that
manumitted slaves be transported "out of the countrey within six
moneths" or risk re-enslavement. 78 Furthermore, manumission was
no longer at the pleasure of the master, but required approval of the
governor and council.179
The council continued to approve manumissions, but an
increasing number were conditional, requiring the slave to continue
working for a term, unless the slave had performed an extraordinary
service. In 1710, Will, a slave who collaborated with his master to
discover a slave conspiracy, was given his freedom by the general
court as "a reward of his fidelity and for encouragement of such
services."'s In 1723, a new regulation declared that "no negroe .. .
shall be set free upon any pretence whatsoever" unless he performed
"meritorious services." 181 Many cases, however, seemed to interpret
"meritorious" simply as "faithful," and continued to allow masters to
manumit slaves who had served them, or would go on to serve them,
for a period of years. The law regarding transportation did have an
effect.'" At least one slave, Okree, from Essex County, chose reenslavement so as to remain with his enslaved family.'
Other limitations on the rights of free people of color were
added, however. In addition to a 1691 ban on intermarriage, 1 4 in
1705, comprehensive legislation regulating slavery added a number of
statutes applying also to free people of color, 8 s including a
disqualification from testifying in court.186 The 1705 statute also
177. An Act for Suppressing Outlying Slaves, act 16 (1691), in 3 LAWS OF VIRGINIA,
supra note 96, at 86, 86 (William Waller Hening ed., Phila., Thomas Desilver 1823).
178. See id at 86-88.
179. See id. at 86.
180. An Act to Set Free Will, a Negro Belonging to Robert Ruffin, ch. 16 (1710), in 3
LAWS OF VIRGINIA, supra note 96, at 537, 537 (William Waller Hening ed., Phila., Thomas
Desilver 1823).
181. An Act Directing the Trial of Slaves, ch. 4, § 17 (1723), in 4 LAWS OF VIRGINIA,
supra note 96, at 126,132 (William Waller Hening ed., Richmond, W.W. Gray 1820).
182. See MORGAN, supra note 114, at 15.
183. See id.
184. See An Act for Suppressing Outlying Slaves, act 16 (1691), in 3 LAWS OF
VIRGINIA, supra note 96, at 86, 87 (William Waller Hening ed., Phila., Thomas Desilver
1823).
185. See An Act for Establishing the General Court, and for Regulating and Settling
the Proceedings Therein, ch. 19 (1705), in 4 LAWS OF VIRGINIA, supranote 96, at 287, 287
(William Waller Hening ed., Richmond, W.W. Gray 1820).
186. See id. § 31, at 298.
2013]
SLAVES, FREE BLACKS, AND RACE
1731
defined a "mulatto" in the law for the first time, as the "child of an
Indian, and the child, grand child, or great grand child, of a negro."181
In 1723, free people of color lost their right to vote.'"
On the eve of the American Revolution, the position of free
people of color in Virginia was considerably more precarious than in
Cuba or Louisiana. Nevertheless, while the free black populations of
Louisiana and Virginia were far smaller than that of Cuba, colonial
officials' fear of alliances between blacks and Indians led to efforts to
divide the two communities. These efforts meant that racial
hierarchies were not clear-cut: in some instances, blacks could be
favored over Indians, and vice-versa; and mixing among the groups
remained widespread. In Louisiana, blacks served as executioners and
overseers to punish whites, and in military expeditions against
Indians. In Virginia, Bacon's Rebellion led to a slew of regulations
designed to separate blacks from Indians and poor whites, yet that
separation remained incomplete.
B.
The Age of Revolution: 1770s-1820s
The late eighteenth century marked a change in the status of
slaves across the New World. Urban slaves in both North and South
America took advantage of revolutionary ideologies and social unrest
to make claims for freedom.189
In Virginia, some legislators were motivated by their own
sentiments in favor of liberty to pass laws loosening manumission
restrictions. The Importation Act of 1778,10 which banned
importation of slaves from Africa or from other states, indirectly
provided slaves with a major opening for freedom suits.' 9' Because
the penalty for illegally importing slaves included emancipation, a
slave who had been brought from Maryland to Virginia, for example,
could sue for freedom on the basis of illegal importation.19 2 This
187. An Act Declaring Who Shall Not Bear Office in this Country, ch. 4 (1705), in 3
LAWS OF VIRGINIA, supranote 96, at 252, 252 (William Waller Hening ed., Phila., Thomas
Desilver 1823).
188. See An Act Directing the Trial of Slaves, ch. 4, § 23 (1723), in 4 LAWS OF
VIRGINIA, supra note 96, at 133, 133-34 (William Waller Hening ed., Richmond, W.W.
Gray 1820).
189. See Grinberg,supra note 19, at 67.
190. An Act for Preventing the Farther Importation of Slaves, ch. 1 (1778), in 9 LAWS
OF VIRGINIA, supra note 96, at 469, 469 (William Waller Hening ed., Richmond, J. & G.
Cochran 1821).
191. See A. Leon Higginbotham, Jr. & F. Michael Higginbotham, "Yearning to Breathe
Free": Legal Barriers Against and Options in Favor of Liberty in Antebellum Virginia,68
N.Y.U. L. REV. 1213, 1248-49 (1993).
192. See id.
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remained one of the significant bases for freedom suits for several
decades.193 Another major new law was the Manumission Act of
1782,194 providing for private manumissions as well as the right of
slaves to sue for freedom. 195 The Freedom Suit Act of 1795196
expanded the possibilities for slaves to claim freedom by providing
lawyers for indigent slave petitioners.197
Many masters and slaves took advantage of the greater ease of
freeing slaves, so by 1790 the population of free people of color in
Virginia had nearly doubled, and reached 12,000, or about 1.7% of
the total population.198 Other states followed suit, relaxing regulations
on manumission and often combining them with plans for
"colonization," sending freed slaves back to Africa."' From the
American Revolution through the 1820s, there was a relatively high
rate of manumission across the southern United States,20 0 and
practices looked quite similar to the Spanish colonies. Despite grand
schemes for colonization, most free people of color remained in the
United States. By 1820, the free population of color in Virginia had
tripled in size, representing about 3.5% of the whole population.20'
During this period, slaves played an increasingly active role in
manumissions, negotiating self-purchase or the purchase of family
members, or enlisting the help of a sympathetic white person or free
person of color. Most freedom suits took advantage either of the
limitations placed on importation of slaves into the state that was part
193. See Michael L. Nicholls, 'The Squint of Freedom': African-American Freedom
Suits in Post-Revolutionary Virginia, 20 SLAVERY & ABOLITION 47, 51-53 (1999).
194. An Act to Authorize the Manumission of Slaves, ch. 21 (1782), in 11 LAWS OF
VIRGINIA, supra note 96, at 39, 39 (William Waller Hening ed., Richmond, George
Cochran 1823).
195. See id. § 1, at 39; see also Higginbotham & Higginbotham, supra note 191, at 1257
(discussing the Manumission Act of 1782).
196. An Act to Reduce into One the Several Acts Concerning Slaves, Free Negroes,
and Mulattoes, and for Other Purposes, ch. 11, 1795 Va. Acts 16.
197. See Higginbotham & Higginbotham, supra note 191, at 1235.
198. OFFICE OF SEC'Y OF STATE, CENSUS FOR 1820, at 8 (1821). At the time of the
revolution free blacks represented only about one percent of the population. WOLF, supra
note 1, at 3.
199. See, e.g., THOMAS D. MORRIS, SOUTHERN SLAVERY AND THE LAW, 1619-1860,
at 387 (1996) (stating that the judges in North Carolina "believed it was possible for slaves
to elect freedom" and giving an example of one slaveholder who "gave her slaves to the
American Colonization Society to be sent with their consent to Africa").
200. See, e.g., id at 392-98 (using the increasing number of manumissions in Virginia as
a case study depictive of the increasing rate of manumissions across the South at the time).
201. See OFFICE OF SEC'Y OF STATE, supra note 198, at 18 (1821) (showing that the
free, non-white population composed 36,889 out of the 1,065,633 total inhabitants of
Virginia); supra note 198 and accompanying text (estimating the population of free blacks
in Virginia in 1790 to be 12,000).
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SLAVES, FREE BLACKS, AND RACE
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of the revolutionary restrictions on the slave trade, or of the rule that
status followed the mother, and that Indian ancestry in the maternal
line could lead to a presumption of freedom.202
Slaves who could trace their roots to both Indian and African
ancestors used that fact to their advantage in their claims to freedom.
In Virginia, late eighteenth-century newspapers were filled with
advertisements for runaway slaves who had insisted upon their free
Indian ancestry. Take October 1772, when Paul Michaux advertised
for "a Mulatto Man named Jim, who [was] a Slave, but pretend[ed] to
have a Right to his Freedom."2 03 Jim was the son of an Indian man
and had "long black hair resembling an Indian's"; Michaux suspected
that "he was gone to the General Court to seek his freedom.""2 0
Likewise, William Cuszens complained that his "Mulatto Slave"
David, who "sa[id] he [was] of the Indian breed" had gone "down to
the General Court .. . to sue for his freedom." 205
In bringing lawsuits for freedom based on claims of Indian
maternal ancestry, slaves also took advantage of a growing contrast in
the legal treatment of "negroes" and "Indians." A series of cases
established that Indians would be presumed free, and "negroes"
presumed enslaved, so that people who could claim Indian ancestry
might escape slavery. 206 The first cases began to appear in the 1770s,
presenting relatively arcane legal issues about which piece of
legislation had in fact repealed a 1682 act that had allowed Indian
slavery. 207 A series of eighteenth-century cases affirmed that Indians
could only be held as slaves between 1682 and 1705;208 an 1806 case
narrowed this window to 1682-1691.209
This legal differentiation between "negro" and "Indian"
paralleled a growing gulf between the way whites viewed blacks and
Indians in racial terms. During the Revolutionary era, the category of
"race" crystallized in contrast to the new sense of "nation" as the unit
202. See infra note 206 and accompanying text.
203. THE DEVIL's LANE: SEX AND RACE IN THE EARLY SOUTH 62 (Catherine Clinton
& Michele Gillespie eds., 1997) (internal quotation marks omitted).
204. Id. (internal quotation marks omitted).
205. Id. (internal quotation marks omitted).
206. See, e.g., Hudgins v. Wright, 11 Va. (1 Hen. & M.) 134, 141 (1806) (opinion of
Roane, J.).
207. See, e.g., id. at 138-39 (opinion of Tucker, J.).
208. See id. (discussing how 1705 was previously considered the last year that Indians
could be deemed slaves).
209. See id. at 139.
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NORTH CAROLINA LAW REVIEW
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of political organization, a people with a state.2 10 In the American
context, the "negro" came to stand for "race"-a race fit for
servitude, in contrast to the "Indian" who was a member of a nation
inferior in civilization, but capable of improvement. 2 11 Drawing the
contrast between blacks and Indians served to divide and conquer
two groups who threatened the new slave societies being built in the
American republic.2 12 Thus, in Virginia (and Louisiana as well), the
legal construction of slaves' racial status grew out of the contrast
between "Indian" and "negro" in a way that it did not in Cuba.2 13
Nevertheless, the greater availability of freedom through
manumission and lawsuits during the Revolutionary era produced a
substantial population of free people of color in Virginia by 1820, one
that remained the largest in the United States throughout the
antebellum era.214
In Louisiana, the Age of Revolution coincided with the passing
of the colony into Spanish hands. During the four decades of Spanish
rule, the practice of coartaci6n, as well as liberal rules regarding
manumission, contributed to the growth of a substantial population of
free peoples of color, or gens de couleur libre.2 15 Almost 2,000 slaves
were freed between 1763 and 1803; nearly 100 slaves per year by
1803.216 Slaves in New Orleans were nearly three times more likely to
win their freedom than slaves in post-Revolutionary Virginia.217
Likewise, coartaci6n was quite frequent; while only about two cases
per year went to court, Hans Baade estimates that "nine out of ten
paid-for manumissions were obtained by agreement rather than
litigation, and that 500 or more manumissions in the Spanish period
210. See Nicholas Hudson, From "Nation" to "Race": The Origin of Racial
Classificationin Eighteenth-Century Thought, 29 EIGHTEENTH-CENTURY STUD. 247, 248,
251 (1996).
211. See id. at 250-52.
212. See id. at 251.
213. See Pallas v. Hill, 12 Va. (2 Hen. & M.) 149, 160-61 (1807); Coleman v. Dick &
Pat, 1 Va. (1 Wash.) 233, 237 (1793); Jenkins v. Tom, 1 Va. (1 Wash.) 123, 124 (1792);
Robin v. Hardaway, 1 Jeff. 109, 118, 122, (Va. Gen. Ct. 1772).
214. In 1820, 36,889 "free colored persons" accounted for nearly 3.5% of Virginia's
population. OFFICE OF SEC'Y OF STATE, supra note 198, at 18. This portion of the
population grew to a total of 47,348 in 1830, ABSTRACT OF THE RETURNS OF THE FIFTH
CENSUS, H.R. DOc. No. 22-263, at 18 (1st Sess. 1832), and up to 58,042 in 1860, JOSEPH C.
G. KENNEDY, POPULATION OF THE UNITED STATES IN 1860; COMPILED FROM THE
ORIGINAL RETURNS OF THE EIGHTH CENSUS 515 (1864).
215. See JENNIFER M. SPEAR, RACE, SEX, AND SOCIAL ORDER IN EARLY NEW
ORLEANS 110 (2009).
216. Id.
217. Id.
2013]
SLAVES, FREE BLACKS, AND RACE
1735
were obtained by these two devices in combination."218 The
population of free people of color "grew from three percent of the
total population of New Orleans in 1771 to almost twenty percent in
1805"1219 on the eve of the Louisiana Purchase, even though the slave
population nearly tripled in the same period.22 0
Coartaci6n was not only an important route to freedom for
Louisiana slaves but provided slaves an opportunity to challenge their
masters directly in courts of law. For example, Maria Juana invoked
"the recourse that for charity is conceded to all slaves, namely to go
look for masters more to their liking," as well as calling on "Divine
Law which is in her favor," to escape "captivity [in which] she,
herself, is exposed continually to punishment where through
suffocation or desperation she might die."22 1 Maria Juana did not
succeed in her claim against her owner, as the court did not agree that
coartaci6n included the right to force an owner to sell to another
buyer, 2 22 but many slaves did win their claims to self-purchase.
Luckier than Maria Juana, Marie-Therese claimed her freedom
from Marie-Francoise Girardy in 1782.223 The slaveowner refused to
answer the suit and argued that Marie-Therese was a runaway who
should compensate her for lost labor; Marie-Therese claimed that she
had served her mistress for twenty-five years and had the right to
purchase her freedom. 224 The case followed the typical procedure in
coartacidn cases in New Orleans, in which a slave demanded the right
to have an appraiser appointed to set her purchase price.225 One
appraiser would be appointed on her behalf, one on behalf of the
owner, and if they disagreed, a third to settle the matter.22 6 The
arguments over valuation are interesting; slaves argued infirmity and
age, while masters emphasized the slave's skills and abilities-even a
slave who was a fugitive. Marie-Therese's owner insisted that she was
"one of the most perfect servants in this Province, a good washer and
ironer, also a seamstress and embroiderer, as well as an excellent
218. Baade, supra note 24, at 76; see also id. at 47-48 (discussing the frequency of
coartaci6n).
219. Spear, supra note 34, at 277.
220. See SPEAR, supra note 215, at 110 (noting how the slave population increased
from 3,000 to 8,000 during this period).
221. Laura L. Porteous, Index to the Spanish JudicialRecords of Louisiana XXI, 11 LA.
HIST. Q. 314, 339 (1928).
222. See id. at 338-40 (discussing Maria Juana's case against her owner).
223. See Laura L. Porteous, Index to the Spanish JudicialRecords of Louisiana LXIX,
19 LA. HIST. Q. 510, 512-15 (1936) (discussing Maria Theresa's case against her owner).
224. See id. at 513-14.
225. See, e.g., id. at 512.
226. See, e.g., id. at 514-15.
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cook," and that the only significance of her being a runaway was that
she owed her master wages for the time absent.227 Nevertheless,
Marie-Therese succeeded in winning a low purchase price ($600,
where she had claimed $500 and her owner $900) based on her
advanced age, between forty-eight and fifty; she did, however, have to
pay back wages for her time as a runaway.228
As in Virginia, the Age of Revolution was the most important
period in Louisiana for establishing a large and significant population
of free people of color, especially in New Orleans, where they made
up more than 17% of the total population by 1820.229
In Cuba, the relative importance of free people of color
increased throughout the eighteenth century, when Cuba began to
experience a rapid process of economic, social, and demographic
changes that would turn it into a major plantation society. 230 By 1792,
around the dawn of the plantation economy, free blacks and
mulattoes represented 39% of the non-white population in the island
and 20% of the population as a whole." About 19% of the
inhabitants of Havana and its suburbs were counted as "negros,"
"mulatos," or "libres." 23 2 They continued to play a prominent role in
the militias, which constituted a route to social standing and
consideration.233 Free colored soldiers represented 29% of the
military forces in the colony in 1770.234
The Bourbon reforms of the late eighteenth century may have
contributed to the expansion of opportunities for slaves to demand
freedom and press other claims. As Bourbon reformers sought to
unify and clarify legal and bureaucratic practices across their vast
empire, they encountered entrenched practices and customary rights
that could not be obliterated. Some of these practices, such as
coartaci6n, were potentially favorable to slaves. A poorly defined
institution, coartaci6n was used by slaves to claim the "right" to
purchase freedom, as well as ancillary customary rights such as the
"right" to change owners at will or the "right" to control a portion of
their time and labor. Bourbon reformers issued new regulations to
227.
228.
229.
230.
Id. at 514.
See id. at 515.
See OFFICE OF SEC'Y OF STATE, supra note 198, at 123.
See FRANCISCO CASTILLO MELtNDEZ, LA DEFENSA DE LA ISLA DE CUBA EN LA
SEGUNDA MITAD DEL SIGLO XVII, at 191-201, 241-44 (1986).
231. See KIPLE, supra note 32, at 28 (using the numbers from Ram6n de la Sagra's
research).
232. See id. app. (Census of 1792).
233. See 5 LEVi MARRERO, supra note 155, at 28-29.
234. See KLEIN, supra note 23, at 217-18.
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SLAVES, FREE BLACKS, AND RACE
1737
contain those practices and "rights," which owed much to slaves'
initiatives and creativity, but in the process acknowledged their
existence and gave them a clearer legal footing.235
Furthermore, the new regulations served as grounds for new
claims and as foundations for new rights. Scholars of slavery and the
law in several colonial territories in Spanish America have noted that
in the late eighteenth century slaves approached the courts in growing
numbers to make claims, assert rights, and sue masters. 236 This was
surely influenced by the debates over individual freedoms, equality,
and citizenship that criss-crossed the Atlantic in the Age of
Revolution, 23 7 but it was facilitated as well by the efforts of Bourbon
reformers who sought to clarify the "slave law" of the empire.238
Slaves "demanded outright freedom more frequently" 239 and legal
suits "began to have a new meaning in the late eighteenth century,
one that implied the recognition of individual rights." 240
Thus, the period from 1770 to the early nineteenth century could
be said to be the era of greatest commonality across our three
jurisdictions. In all three, manumission had become a regularized
aspect of the regime of slavery during a period of rapid growth in the
staple plantation economy and the slave trade. In all three,
manumission was used as a way to reward service and to provide
incentives for hard work during the term of slavery. And in all three,
slaves and free people of color took advantage of the new
opportunities created by political change to press freedom claims. All
of this was to change in the nineteenth century, when the United
States and Cuba diverged considerably in their policies with regard to
free people of color.
235. On the Bourbon reforms and their impact in Latin America, see generally
STANLEY J. STEIN & BARBARA H. STEIN, APOGEE OF EMPIRE: SPAIN AND NEW SPAIN
IN THE AGE OF CHARLES III, 1759-1789 (2003); D. A. Brading, Bourbon Spain and Its
American Empire, in 1 THE CAMBRIDGE HISTORY OF LATIN AMERICA 389 (Leslie
Bethell
236.
237.
238.
ed., 1984).
See Grinberg,supra note 19, at 72.
See id. at 71.
The most important codification effort is the famous Real C6dula of 1789, which
slaveowners adamantly opposed. See MANUEL LUCENA SALMORAL, LOS C6DIGOS
NEGROS DE LA AMERICA ESPANOLA 101-02, 123 (1996).
239. Camilla Townsend, "HalfMy Body Free, the Other Half Enslaved": The Politics of
the Slaves of Guayaquilat the End of the ColonialEra, 7 COLONIAL LATIN AM. REV. 105,
108 (1998).
240. Grinberg, supra note 19, at 78.
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C. Nineteenth Century
During the nineteenth century, elites in all three jurisdictions
sought to curb the power of free people of color, yet they were far
less successful in Cuba than in Virginia and Louisiana. This difference
can be attributed in part to the sheer size of the free colored
population in Cuba, and in part to political and ideological
developments in the United States that had no counterpart in Cuba.
In Cuba, free blacks experienced an assault on some of their
rights and privileges during the early nineteenth century, as the fastgrowing sugar economy and the concomitant expansion of slavery
increased racial and social tensions in unprecedented ways.241 The
participation of free blacks in several real or alleged conspiracies did
little to reduce those tensions.242 Despite these fears, which were
associated with the possibility of another slave uprising like the
Haitian Revolution, and despite the fact that the relative importance
of free blacks declined, the community continued to represent a
sizeable proportion of the total population. 243 Between the 1820s and
the 1840s, their percentage of the population of the island as a whole
declined to 15%,21 but the community kept growing in absolute
terms, and its proportion climbed to almost 17% by 1861;245 in the city
241. See VERENA MARTINEZ-ALIER, MARRIAGE, CLASS AND COLOUR IN
NINETEENTH CENTURY CUBA: A STUDY OF RACIAL ATTITUDES AND SEXUAL VALUES
IN A SLAVE SOCIETY 74-76 (1974) (describing how the stigma of slavery affected the
social status of free blacks).
242. See MATT D. CHILDS, THE 1812 APONTE REBELLION IN CUBA AND THE
STRUGGLE AGAINST ATLANTIC SLAVERY 46-47 (Louis A. P6rez, Jr. ed., 2006)
(describing a violent slave rebellion during which a slave named Tiburcio attacked his
overseers with a machete); KLEIN, supra note 23, at 220-22 (describing how royal officials
imprisoned and executed suspected conspiracy leaders, despite the absence of evidence or
verified informants' tips); FRANKLIN W. KNIGHT, SLAVE SOCIETY IN CUBA DURING THE
NINETEENTH CENTURY 81 (1970) (noting that "whites and free persons of color"
participated in Cuban slave revolts); 1 MANUEL MORENO FRAGINALS, EL INGENIO:
COMPLEJO ECONOMICO SOCIAL CUBANO DEL AZJCAR 128-29 (1978) (discussing the
increase in tension in the bourgeois freedom ideology resulting from slave uprisings); 2
MORENO FRAGINALS, supra, at 83 (discussing the "Conspiraci6n de la Escalera," a
conspiracy involving slaves and free blacks); ROBERT L. PAQUETTE, SUGAR IS MADE
WITH BLOOD: THE CONSPIRACY OF LA ESCALERA AND THE CONFLICT BETWEEN
EMPIRES OVER SLAVERY IN CUBA 71-72 (1988) (describing a series of slave revolts on
Cuban plantations, noting that there were "no fewer than 399 reported cases of slave
violence from 1825 to 1850 in Matanzas province alone").
243. On fears of Haiti in Cuba, see generally MARIA DOLORES GONZALEZ-RIPOLL
ET AL., EL RUMOR DE HAITI EN CUBA: TEMOR, RAZA Y REBELDIA, 1789-1844 (2004);
Ada Ferrer, Haiti, Free Soil, and Antislavery in the Revolutionary Atlantic, 117 AM. HIST.
REV. 40 (2012).
244. See KIPLE, supra note 32, app. (Census of 1827).
245. See id. (Census of 1861).
2013]
SLAVES, FREE BLACKS, AND RACE
1739
of Havana, the free population of color remained an important
minority, 26% in 1841.246 Despite significant efforts by the planters to
curtail traditional avenues for self-purchase such as coartaci6n,slaves
and their allies managed in fact to expand these rights during the
nineteenth century. In their study of the slave market in Cuba from
1790-1880, Laird Bergad, Fe Iglesias Garcia, and Maria del Carmen
Barcia found that coartado slaves represented 13% of all sales. 24 7 If
this ratio was, as the authors suggest, "close" to the percentage of
coartadosin the slave population at large, then traditional avenues for
freedom remained entrenched in Cuban colonial society even at the
height of the plantation period.248 Only a fraction of these slaves were
able to complete the payments required to purchase their total
freedom, but this traditional legal custom remained in full effect and
seems to have been widely used.249
In Virginia, restrictions on manumission began to increase again
as early as 1806, with passage of a law requiring freed slaves to leave
the state within the year. Manumissions declined, yet local records
suggest that the law was rarely enforced, and that most freed slaves
remained in Virginia. More stringent limitations on the liberties of
free people of color were added to the statute books in the 1830s and
1840s. In particular, the Nat Turner insurrection of 1831 led to a host
of very specific restrictions on the freedoms of free people of color,250
because Turner was a foreman-a near-free slave." These
restrictions were also part of the reaction to anti-slavery sentiment in
the North, beginning as early as the turn of the century, but
accelerating in the 1830s.
Because Virginians and other U.S. southerners did not dominate
their own federal government, but rather operated within a system in
246. See 2 COMITE ESTATAL DE ESTADISTICAS, INSTITUTO DE INVESTIGACIONES
ESTADISTICAS, Los CENSOS DE POBLACI)N Y VIVIENDAS EN CUBA 98 (1988) (Havana
Census of 1841).
247. LAIRD W. BERGAD, FE IGLESIAS GARCIA, & MARIA DEL CARMEN BARCIA,
THE CUBAN SLAVE MARKET 1790-1880, at 123 (1995).
248. See id.
249. See id. at 122-31. Visitors to the island frequently referred to this institution. For
some examples, see generally SLAVES, SUGAR, AND COLONIAL SOCIETY: TRAVEL
ACCOuNTS OF CUBA, 1801-1899 (Louis A. P6rez, Jr. ed., 1992); Alejandro de la Fuente,
Slaves and the Creation of Legal Rights in Cuba: Coartaci6nand Papel, 87 HISP. AM. HIST.
REV. 659 (2007).
250. See A. Leon Higginbotham, Jr. & Anne F. Jacobs, The "Law Only as an Enemy":
The Legitimization of Racial Powerlessness Through the Colonial and Antebellum
Criminal Laws of Virginia, 70 N.C. L. REV. 969, 989 n.73 (1992).
251. See Herbert Aptheker, The Event, in NAT TURNER: A SLAVE REBELLION IN
HISTORY AND MEMORY 45,47 (Kenneth S. Greenberg ed., 2003).
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NORTH CAROLINA LAW REVIEW
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which the northern states had abolished and turned against slavery,
sectional politics helped to consolidate a racially based defense of
slavery, and of "white men's democracy,"252 that had no counterpart
in Cuba. Slaveholders in Cuba had to defend the institution as well,
but their most frequent argument pointed to the alleged benevolence
of slavery on the island and to the humanity of Spanish laws and
civilization rather than to the innate inferiority of blacks.253 Departing
from the view that freedom was a natural state for all human beings,
southern white ideologues-including judges and lawyers-began to
argue that blacks were incapable of self-government, and so slavery
was the best possible institution to allow them to flourish. One
treatise writer explained: "[A] state of bondage [for the negro], so far
from doing violence to the law of his nature, develops and perfects it;
and that, in that state, he enjoys the greatest amount of happiness,
and arrives at the greatest degree of perfection of which his nature is
capable."254 As southerners articulated the positive-good defense of
slavery more often in terms of race, they increasingly emphasized a
dual image of the black person: under the "domesticating" influence
of a white master, the slave was a "happy child," a Sambo, while the
free black outside the bonds of slavery was a savage beast. 255 This new
racial defense of slavery put growing pressure on the increasingly
anomalous free people of color, as well as people of mixed race.
Along with increased restrictions on manumission, the most
important new limitations on the rights of free people of color were
constraints on their freedom of movement. In 1793, free blacks in
Virginia were required to register with the state and to carry their
freedom papers with them wherever they went; after 1831, these rules
were strengthened. Free people of color were frequently stopped by
slave patrols who often mistook them for slaves and asked for their
passes. If their papers were not in order, they could be taken to jail or
even cast into slavery. A host of laws were passed forbidding
252. See generally GEORGE
M. FREDRICKSON, THE BLACK IMAGE IN THE WHITE
MIND: THE DEBATE ON AFRO-AMERICAN CHARACTER AND DESTINY, 1817-1914, at
58-64 (1971) (describing opposing justifications for slavery and support for "Herrenvolk
democracies" that were democratic only for the dominant white race).
253. See Jamie Holeman, "A PeculiarCharacterof Mildness": The Image of a Humane
Slavery in Nineteenth-Century Cuba, in FRANCISCO ARANGO Y LA INVENCI6N DE LA
CUBA AZUCARERA 41, 44 (Maria Dolores Gonz6lez-Ripoll & Izaskun Alvarez Cuartero
eds., 2010).
254. THOMAS R. R. COBB, AN INQUIRY INTO THE LAW OF NEGRO SLAVERY IN THE
UNITED STATES OF AMERICA 51 (Univ. of Ga. Press 1999) (1858).
255. See GEORGE M. FREDRICKSON, THE ARROGANCE OF RACE: HISTORICAL
PERSPECTIVES ON SLAVERY, RACISM, AND SOCIAL INEQUITY 209 (1988).
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SLAVES, FREE BLACKS, AND RACE
1741
preaching by people of color, gathering in religious meetings or other
assemblies, selling liquor, or owning slaves.2" For minor offenses, free
blacks were whipped thirty-nine lashes in the public square, but they
also risked banishment and re-enslavement. About the only rights
that remained for them were property rights, including the right to
own family members as slaves.
Virginian legislators also struggled with people of mixed race.
Despite legal efforts to increase fines on interracial fornication and
systematic prohibitions against interracial marriages, the number of
offspring of white-black liaisons increased over time, producing
individuals that did not fit into any of the legal categories. When the
Virginia legislature imposed new limits on free people of color in
1832 (when mulattoes were legally indistinguishable from blacks), it
had to face the uncomfortable fact that there were "Indians and other
persons of mixed blood, who [were] not free negroes or mulattoes" 258
but who could not be legally characterized as white either. A law
approved in 1833 authorized county courts to grant certificates
indicating that a free person who was not white, but who was not "a
free negro or mulatto" either, was to be exempted from the legal
limitations imposed on such free people of color. 25 9 As in Latin
America, to be white was not just a question of ancestry, but of social
standing and perceptions in the local community.
By the eve of the Civil War, white Virginians had made every
effort to guarantee that "free" and "white" would be synonymous, as
would "black" and "slave." These efforts were never totally
successful-free people of color and people of mixed race, both slave
and free, confounded them-but legislators in Virginia were much
more effective than Cuban planters, or even those in New Orleans, in
curtailing manumission and limiting the growth of the free population
of color.
Louisiana became an American territory in 1806, after a brief
reversion to France in 1803 and three more years of Spanish rule.
Due to its peculiar legal history and to the existence of an unusually
large free population of color, Louisiana remained exceptional with
regard to slaves' abilities to win freedom in the nineteenth century.
256. For a list of Virginia laws affecting free persons of color during this time, see
generally JUNE PURCELL GUILD, BLACK LAWS OF VIRGINIA 94-124 (1936).
257. See id.
258. JOSHUA D. ROTHMAN, NOTORIOUS IN THE NEIGHBORHOOD: SEX AND
FAMILIES ACROSS THE COLOR LINE IN VIRGINIA, 1787-1861, at 210-11 (2003) (internal
quotation marks omitted).
259. Id. at 211.
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Slaves continued to purchase themselves, manumissions continued at
a higher rate than in other states, and, although Louisiana sought to
limit these rights, they continued to exercise them throughout the
period.
Perhaps most surprisingly, despite both French and American
efforts to abolish the Spanish practice, coartaci6ncontinued well into
the nineteenth century. During the twenty-day interlude of French
rule in 1803, the Code Noir was reenacted;26 0 nonetheless, there were
some two hundred instances of coartaci6n from 1803 to 1806.261 The
new American state drew on a true hodgepodge of French, Spanish,
and Roman legal influences, particularly with regard to slave policy.
The territory adopted a Black Code for the regulation and
punishment of slaves that reenacted much of the Code Noir.262 In
1807, an act regarding emancipation decreed that "no person shall be
compelled either directly or indirectly, to emancipate his or her slave
260. SCHAFER, SLAVERY AND THE CIVIL LAW, supra note 24, at 3; see also An Act
Prescribing the Rules and Conduct To Be Observed with Respect to Negroes and Other
Slaves of this Territory, ch. 30, § 4 (1807), in ACTS PASSED AT THE FIRST SESSION OF THE
FIRST LEGISLATURE OF THE TERRITORY OF ORLEANS 188, 188-90 (New Orleans,
Bradford & Anderson 1807) [hereinafter ACTS OF ORLEANS] (enacting provisions of the
Code Noir).
261. SCHAFER, SLAVERY AND THE CIVIL LAW, supra note 24, at 3.
262. See, e.g., An Act to Regulate the Conditions and Forms of the Emancipation of
Slaves, ch. 10 (1807), in ACTS OF ORLEANS, supra note 260, at 82, 82-89. A year later, the
Digest of 1808 represented itself as a compilation of "all the law now in force in the
territory" but also left in force the 1807 Black Code. While most historians agree that the
Digest was largely inspired by French law, many jurists continued to rely on Spanish law;
regardless of the exact proportion of French to Spanish influence, Louisiana jurists
continued to draw on French, Spanish, and Roman law in addition to the 1808 Digest, and
the 1825 Civil Code that remained in force until 1870 drew heavily on the French Civil
Code. For more on these developments, see generally Rodolfo Batiza, Sources of the Civil
Code of 1808, Facts and Speculation: A Rejoinder, 46 TUL. L. REV. 628 (1972); Rodolfo
Batiza, The Louisiana Civil Code of 1808: Its Actual Sources and Present Relevance, 46
TUL. L. REV. 4 (1971); Robert A. Pascal, Sources of the Digest of 1808: A Reply to
Professor Batiza, 46 TUL. L. REV. 603 (1972). For additional guidance on the debate
between the level of French and Spanish influences, see generally RICHARD HOLCOMBE
KILBOURNE, A HISTORY OF THE LOUISIANA CIVIL CODE: THE FORMATIVE YEARS,
1803-1839 (1987); VERNON VALENTINE PALMER, THE LOUISIANA CIVILIAN
EXPERIENCE: CRITIQUES OF CODIFICATION IN A MIXED JURISDICTION (2005); Hans W.
Baade, The Bifurcated Romanist Tradition of Slavery in Louisiana, 70 TUL. L. REV. 1481
(1996); A. N. Yiannopoulos, The Early Sources of Louisiana Law: CriticalAppraisal of a
Controversy, in LOUISIANA'S LEGAL HERITAGE, supra note 24, at 96-100. For more
about the French influence on Louisiana law, see generally A LAW UNTO ITSELF? ESSAYS
INTHE NEW LOUISIANA LEGAL HISTORY (Warren M. Billings & Mark F. Fernandez eds.,
2001); GEORGE DARGO, JEFFERSON'S LOUISIANA: POLITICS AND THE CLASH OF LEGAL
TRADITIONS (rev. ed. 2009); 1 THE LOUISIANA PURCHASE BICENTENNIAL SERIES IN
LOUISIANA HISTORY: THE FRENCH EXPERIENCE INLOUISIANA (Glenn R. Conrad ed.,
1995).
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SLAVES, FREE BLACKS, AND RACE
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or slaves,"263 thereby implicitly abolishing coartaci6n. The act
required judicial permission for manumission-including proof that a
slave was thirty years old and had exercised good behavior for four
years. 21 Additional acts limited the emigration or settlement of "free
negros or mulattos."265 Compared to other states in the United States,
the lingering influence of civil law in Louisiana allowed greater rights
of manumission, including the right to sue for freedom without a next
friend or guardian ad litem. The Supreme Court of Louisiana
confirmed in an 1816 ruling that self-purchase was still enforceable in
the state.266
Louisiana did follow the U.S. southern trend of increasing
restrictions on manumission in the nineteenth century, passing laws
requiring freed slaves to leave the state and new regulations on free
people of color, culminating in re-enslavement laws in the 1850s.2 67
Yet the removal provisions were almost never enforced and
manumission continued at a higher rate than in other states in the
region, although less than in Cuba. 68 And the 1825 Code retained the
right of self-purchase for slaves in article 174: "The slave is incapable
of making any kind of contract, except those which relate to his own
emancipation."2 6 This right to contract for freedom was a watereddown version of coartaci6n, because it did not force a master to sell
his or her slave if the slave put together the purchase price, and slaves
could accumulate property and money only with the consent of their
owner. " Nevertheless, Louisiana was the only state where slaves'
freedom enjoyed some legal support. 271 The Supreme Court of
263. An Act to Regulate the Conditions and Forms of the Emancipation of Slaves, ch.
10, § 1 (1807), in ACTS OF ORLEANS, supra note 260, at 82,82.
264. See id. § 2, at 82.
265. See, e.g., An Act to Prevent the Emigration of Free Negroes and Mulattoes into
the Territory of New Orleans, ch. 28 (1807), in ACTS OF ORLEANS, supra note 260, at 180,
180-83.
266. See Victoire v. Dussuau, 4 Mart. (o.s.) 212, 213 (La. 1816); see also SCHAFER,
SLAVERY AND THE CIVIL LAW, supra note 24, at 225 (discussing Victoire and the court's
affirmation of the right of self-purchase, and the judge's focus on insufficiency of oral
evidence to prove the existence of a contract).
267. See SCHAFER, BECOMING FREE, supra note 24, at 1-2.
268. See infra text accompanying notes 273-88.
269. LA. CIV. CODE ANN. art. 174 (1825).
270. See SCHAFER, SLAVERY AND THE CIVIL LAW, supra note 24, at 224.
271. See id. ("Slaves in other states were occasionally able to purchase their freedom if
the master allowed it, but only in Louisiana did they have the capacity to enter into a
contract for their liberty.").
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Louisiana heard a number of appeals in which slaves tried to enforce
self-purchase contracts, and found for the slaves in some cases.272
Empirical studies of manumission in antebellum Louisiana reach
some interesting conclusions. First, Louisiana continued to free a
steady stream of slaves, a majority of whom were women, after the
adoption of the 1825 Code. 273 Laurence Kotlikoff and Anton Rupert
studied petitions to the Police Jury of New Orleans to manumit
slaves, and counted 1,159 successful petitions in twenty years.274
Second, a large proportion of these slaves, 36.5%, were freed by free
people of color.275 One eighth of free black households were involved
in emancipating a slave, and a slave owned by a free black had 3.5
times the chance to be manumitted as a slave owned by a white.276 At
least 63% of slaves freed by free blacks were family members.277
After 1827, manumission required the approval of three fourths of
the parish police jury, and the freed slave had to leave the state unless
the police jury permitted her to stay; in every case, however, the
police jury allowed freedpeople to stay.278 Even after a new state
constitution was adopted in 1845, and manumissions were further
restricted,2 79 the district courts continued to hear manumission cases,
including self-purchase; slaves continued to win some of these
cases. 280 The Supreme Court of Louisiana even set slaves free on the
basis of sojourns on free soil at a time when the consensus among
other states was that a brief visit to the North was not enough to free
a slave.281
Self-purchase trials in the nineteenth century reveal not only the
established nature of this practice, but the courts' resort to Spanish as
well as Roman law in deciding self-purchase cases. An 1818 appeal of
a slave woman's suit for freedom based on an agreement her father
made during the Spanish period was argued on the basis of Roman
law principles, which allowed her to work for the "residue" of her
272. See SCHAFER, BECOMING FREE, supra
AND THE CIVIL LAW, supra note 24, at 224-34.
note 24, at 45-58;
SCHAFER, SLAVERY
273. See Laurence J. Kotlikoff & Anton J. Rupert, The Manumission of Slaves in New
Orleans, 1827-1846, 1980 S. STUD. 172, 176.
274. Id. at 172.
275. Id.
276. Id. at 172, 179.
277. Id. at 180.
278. See id. at 173.
279. See Judith Kelleher Schafer, Roman Roots of the Louisiana Law of Slavery:
Emancipationin American Louisiana,1803-1857,56 LA. L. REV. 409,420 & n.60 (1995).
280. See SCHAFER, SLAVERY AND THE CIVIL LAW, supra note 24, at 228-49.
281. See SCHAFER, BECOMING FREE, supra note 24, at 15-33.
SLAVES, FREE BLACKS, AND RACE
2013]
1745
purchase price. 282 Another New Orleans slave who had raised most of
his purchase price "by voluntary contributions among the free people
of color," Louis Doubrdre, won his freedom suit citing not only the
Louisiana Civil Code but the Spanish Siete Partidas.283 As late as 1842,
a Louisiana jury found in favor of the freedom of an enslaved man
who had purchased himself, despite the Code's rejection of
coartacion.284
Thus, in nineteenth-century Louisiana, manumission (including
self-purchase) continued to be more frequent than in other parts of
the United States, although legislators were imposing restrictions in
response to the same ideological and political imperatives as in
Virginia. It does appear that the Spanish practice of coartaci6n made
substantial inroads in Louisiana, and this left a lasting legacy in two
ways. First, by expanding the class of free people of color, it indirectly
expanded the practice of manumission, because free people of color
were the most likely to emancipate a slave, to help a slave raise the
money for self-purchase, and to buy family members in order to free
them. Free people of color were also willing to agitate for greater
rights, and in general acted in solidarity with slaves. Second, the
practice of self-purchase continued even when it was technically
prohibited by statute, and courts continued to uphold the practice,
even turning to Spanish and Roman law principles in deciding cases.
By comparison to Cuba, the practice was relatively modest in
terms of the rights slaves were able to carve out. Louisiana slaves
could not force owners to sell them, they could not seek out new
owners on their own, they could not use time served to pay a contract
price, and they could not demand a sale for violations of their rights.
The distinct community of gens de couleur libres in New Orleans did,
however, develop its own political traditions, which became the basis
for strong claims to citizenship both before and after the U.S. Civil
War.285
282. See Cuffy v. Castillion, 5 Mart. (o.s.) 494, 495-96 (La. 1818).
283. See Transcript of Trial at 992, Doubrdre v. Grillier's Syndic, No. 860 (La. New
Orleans Parish Ct. July 1822) (collection of Earl K. Long Library, Special Collections &
Archives, Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd,
2 Mart. (n.s.) 171 (La. 1824) (granting slave his freedom).
284. See Transcript of Trial at 15, Mathews v. Boland, No. 5119 (La. New Orleans Dist.
Ct. July 1842) (collection of Earl K. Long Library, Special Collections & Archives, Univ.
of New Orleans, New Orleans, La., Supreme Court Records), rev'd on other grounds, 5
Rob. 200 (La. 1843).
285. See Rebecca J. Scott, Public Rights, Social Equality, and the Conceptual Roots of
the Plessy Challenge, 106 MICH. L. REV. 777, 791 (2008).
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Attempts to create fixed, dichotomous social orders where race
and status were perfectly aligned were never totally successful. But
differences in the evolution of the legal regimes of Virginia,
Louisiana, and Havana did have an impact. Differential regimes of
manumission resulted over time in the development of communities
of free people of color of vastly different size-with all the
consequences that the very existence of these communities entailed.
On the eve of the Civil War in the United States (1861) and of the
first War of Independence in Cuba (1868), free people of color were
in relative terms over five times as numerous in Havana (at 18.4% of
the population)" as in Virginia (at 3.6%)287 and almost three times as
numerous as in New Orleans
(6.3%),288
which remained
an
intermediate case in terms of the freed population. As scholars of
slavery and race relations in Latin America have argued, the
existence of large free populations of color was crucial to the
elimination of the caste systems across the region. 28 9 Even in Brazil,
the largest slaveholding society in the Americas during the nineteenth
century, independence resulted in the elimination of legal racial
distinctions.o In this sense, manumission, a key legal institution
under slavery, may have had long-term consequences for race
relations in the Americas.
IV. "RACE TRIALS" IN THE NINETEENTH CENTURY
As we have seen in all three jurisdictions, slaves and free people
of color took advantage of openings in the legal system to press for
freedom, using whatever means were available. But different legal
regimes meant different avenues and opportunities for claimsmaking. Furthermore, as the number of free people of color grew or
shrank, their political power and ability to consolidate legal gains
shifted. In Cuba, the continuing significance of the class of free
people of color meant consolidating the practice of self-purchase into
a legislative right, whereas in Louisiana and Virginia, most paths to
freedom were curtailed in the nineteenth century, and the alreadysmall populations of free people of color found themselves under
increasing attack.
KIPLE, supra note 32, app. (Census of 1861).
See KENNEDY, supranote 214, at 515.
See id. at 194.
See GEORGE REID ANDREWS, AFRO-LATIN AMERICA, 1800-2000, at 86-92
see also MARIXA LASSO, MYTHS OF HARMONY: RACE AND REPUBLICANISM
DURING THE AGE OF REVOLUTION, COLOMBIA, 1795-1831, at 9-11 (2007).
290. See ANDREWS, supranote 289, at 89-91.
286. See
287.
288.
289.
(2004);
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SLAVES, FREE BLACKS, AND RACE
1747
These differences help explain why slaves followed different
litigation strategies in the mature slave societies of Cuba, Louisiana,
and Virginia. In Cuba, slaves used institutional and doctrinal
continuities to press for freedom the way they had done for
centuries.2 91 Since the owners' rights to manumit were never curtailed,
the Cuban courts continued to hear cases concerning manumission.m2
Many of these cases were initiated by slaves who claimed that their
masters' promises of manumission had not been honored, usually by
their heirs; others were initiated by heirs or by creditors who claimed
ownership over those slaves. Slaves also pressed claims for
mistreatment and abuse to change owners and improve their personal
situation.293 Others used the highly contentious legal practice of
coartaci6n to impose manumission on reluctant masters, change
owners, lower their manumission price judicially, or simply to control
more of their time and labor.294
In Virginia and Louisiana, by contrast, slaves' freedom suits
came to center on claims about ancestry and race. The most
important rules regarding racial and slave status were laid down in
the 1806 case of Hudgins v. Wright,2 5 in which a slave named Hannah
sued for her freedom, claiming that her mother had been not black,
but Indian-a woman known as Butterwood Nan. 9 Hannah brought
291. See de la Fuente, supra note 249, at 663-65.
292. See id. at 687.
293. See ANDREWS, supra note 289, at 34.
294. See de la Fuente, supranote 249, at 659-92. The literature on manumission claims
in Latin America has grown significantly. See generally Sherwin K. Bryant, Enslaved
Rebels, Fugitives, and Litigants: The Resistance Continuum in Colonial Quito, 13
COLONIAL LATIN AM. REV. 7 (2004) (analyzing suits brought by slaves against their
masters in colonial Quito, Ecuador); Camillia Cowling, Negotiating Freedom: Women of
Colour and the Transition to Free Labour in Cuba, 1870-1886, 26 SLAVERY & ABOLITION
377 (2005) (arguing that women of color were crucial in the legal transition from slave
labor to free labor in late nineteenth-century Cuba); de la Fuente, supra note 249
(discussing slaves' rights of gradual self-purchase and request for paper to seek a new
master in eighteenth- and nineteenth-century Cuba); Johnson, Slaves and Their Masters,
supra note 153 (analyzing three types of court cases in the late colonial period in Buenos
Aires-individuals who contested their legal statuses as slaves, slaves who sought the right
to purchase their freedom or the freedom of family members, and slaves who demanded
the right to request new masters due to abuses suffered under their present owners);
Bianca Premo, An Equity Against the Law: Slave Rights and Creole Jurisprudence in
Spanish America, 32 SLAVERY & ABOLITION 495 (2011) (analyzing the importance of
judges' political philosophies in establishing and developing the practice of Spanish
American slaves suing their masters for freedom in colonial courts); Townsend, supra note
239 (exploring political beliefs of slaves through courtroom testimony in Guayaquil,
Ecuador, during the colonial independence wars).
295. 11 Va. (1 Hen. & M.) 134 (1806).
296. See id. at 134 (discussing procedural history of case).
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in a wide variety of evidence to defend her claim. Her witnesses
agreed that Hannah appeared white, though that alone was not
enough to free her.2 97 Witnesses also testified that Hannah's father
had been an Indian, but that was not enough to free her either: the
system of chattel slavery depended upon the premise that every child
of an enslaved mother would be enslaved as well.2 98 For Hannah to
win her freedom, she had to show that she was the descendant of a
free Indian woman. Witnesses testified that her mother, Butterwood
Nan, was "called an Indian," and though a slave, could have had her
freedom had she wanted it.2 99 Hannah's putative owners argued that
despite Nan's Indian reputation, Nan's mother could well have been
black; or possibly she was an Indian who had been enslaved during
that period of legal Indian slavery."* In the end, no one was able to
prove whether Nan was really an Indian or only reputed to be one.3 01
Nor could anyone prove whether Nan descended from Indians who
had been legally enslaved." Yet the court's decision makes clear the
early American tendency to consider Indians as citizens of free
nations-while insisting that Africans were a degraded race of slaves.
Because of Hannah's "copper complexion,"303 the court ruled, she
enjoyed a legal presumption of freedom.3 * By contrast, a person who
appeared "negro" would be presumed a slave, unless affirmative
evidence could prove that she was free.305
This contrast between racial and national identity extended even
to different modes of fact-finding. The rare freedom suit to be
appealed all the way to the United States Supreme Court, Negro John
Davis v. Wood,306 in 1816, established the rule that hearsay and
reputation evidence would be allowed only to establish "pedigree"
(that is, race), and not, for example, one's status as slave or free. 0
Community members might testify as to their understanding of a
person's race, and the jury could rule on that race accordingly.0 To
determine slave status, however, the jury would require firsthand
297.
298.
299.
300.
301.
302.
303.
304.
305.
306.
307.
308.
See id.
See id. at 137 (opinion of Tucker, J.).
Id. at 134 (discussing procedural history of case).
See id. at 135.
See id. at 141-43 (opinion of Roane, J.).
See id.
Id. at 137 (opinion of Tucker, J.).
See id. at 142 (opinion of Roane, J.).
See id. at 141.
14 U.S. (1 Wheat.) 6 (1816).
See id. at 6.
See id. at 6-7.
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SLAVES, FREE BLACKS, AND RACE
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evidence, documentation, or something more persuasive than
hearsay.3 09
Some years later, in Gregory v. Baugh,"o the Virginia Supreme
Court of Appeals ruled that the same distinction held when litigating
between Indian identity and one's status as "black."311 Just as Hannah
had done in Hudgins, the slave James Baugh sued his Chesterfield
County owner for his freedom, claiming that his maternal
grandmother was an Indian woman entitled to her freedom, despite
being enslaved.312 Twice James won his freedom, and twice his owner
appealed the case to Virginia's highest court." At the second trial,
James submitted the deposition of an eighty-three year old witness
discussing his grandmother's Indian identity.314 The Virginia Supreme
Court of Appeals ruled that this hearsay testimony about Indian
tribal status was inadmissible-in striking contrast, as the dissent
pointed out, to the general rule about the admissibility of reputation
evidence regarding "pedigree," i.e., racial status.
In trials drawing the line between black and white, courts
routinely allowed every kind of hearsay or reputation evidence, no
matter how remote, to be heard by the jury, on the grounds that
reputation was often the only way to know someone's race.316 But
Indian identity was not yet conceptualized legally in racial terms.
Hence the Gregory court sharply distinguished "the country, nation
or tribe, of [James Baugh's] ancestor" from his "[race or]
pedigree." 317 This fact-finding distinction sharpened the contrast
between "Indians" (citizens of a nation) and "negroes" (members of a
race). 31
Just as the United States parted ways with Latin America with
regard to manumission in the nineteenth century, we see real
differentiation with regard to the ideology of race during the same
period. The kind of racial justification for slavery that developed in
309. See id. at 7; see also Pegram v. Isabell, 12 Va. (2 Hen. & M.) 193, 203, 210-11
(1808) (permitting evidence from previous case to prove mother's freedom, though not to
show the mother was free because of her possible Indian lineage).
310. 25 Va. (4 Rand.) 611 (1827).
311. See id. at 621 (opinion of Carr, J.).
312. See id. at 617.
313. See Gregory v. Baugh, 29 Va. (2 Leigh) 665, 665-66 (1831) (discussing procedural
history of case).
314. See id. at 667-68.
315. See id. at 693-98 (Brooke, J., dissenting).
316. See id. at 679 (opinion of Carr, J.).
317. See id.
318. See id. at 679-80.
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the United States as a governing ideology319 had no counterpart in
Cuba or Brazil because, among other things, of the large size of the
free population of color in those countries.3 20 Equally important,
southern slaveholders had to navigate a system committed to political
liberalism and, increasingly, to democracy, at least in name.3 21 Thus,
unlike planters in other parts of the New World, they worried about
the loyalty of poor and non-slaveholding whites in a slave system. For
southern whites, the ideology of white supremacy and "white man's
democracy" provided the glue for their society.3 22 In this version of
"herrenvolk democracy," all white men could partake in citizenship
and honor because of their race, despite the fact that they were poor
or did not own slaves themselves.3 23 Again, there was no counterpart
to this ideology in Latin America.
This does not mean, however, that whites in Cuba did not deploy
racial ideologies to deny blacks a place in the political community.
Some ideologues invoked arguments which were very similar to those
used by southern slaveholders at the time, claiming that it was only
thanks to slavery that Africans were lifted from the state of savagery
and stupidity in which they naturally lived.3 24 But several factors
limited the influence of these arguments-starting with the size of the
communities of free people of color, which were large enough to
represent a real threat if pushed towards an alliance with slaves. As
royal subjects since the early colonial period, the members of these
communities had obtained corporate privileges and rights that could
not be easily obliterated.3 25
Furthermore, despite efforts to police an ideal caste system,
extensive racial mixing and mobility undermined it. Legal efforts to
prevent intermarriage or, in the legal language of the Royal
Pragmatic on Marriages of 1776, "unequal marriages," had to contend
319. See ARIELA J. GROSS, WHAT BLOOD WON'T TELL: A HISTORY OF RACE ON
TRIAL INAMERICA 4 (2008) ("Because blacks were incapable of self-government, slavery
was the best possible institution to allow them to flourish.").
320. See ANDREWS, supra note 289, at 40-41.
321. See GROSS, supra note 319, at 40-41.
322. See id. at 48.
323. See id. at 54; see also FREDRICKSON, supra note 255, at 138-41 (discussing the
features of a "herrenvolk democracy").
324. For a good example from elsewhere in the Iberian colonial world, see JUAN
BERNARDO O'GAVAN, OBSERVACIONES SOBRE LA SUERTE DE LOS NEGROS DEL
AFRICA 5-8 (Madrid, Imprenta del Universal 1821).
325. These considerations were explicit in the debates surrounding coartaci6n in the
mid-nineteenth century. See de la Fuente, supra note 249, at 661, 669, 692.
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SLAVES, FREE BLACKS, AND RACE
1751
with the ambiguities of contested racial and legal statuses.3 26 in
nineteenth-century Cuba, individuals of different racial status secured
official permission to marry by claiming compensatory social
features.32 7 In 1791, for instance, a white girl in Cuba successfully
litigated her right to marry a mulatto man because, as authorities
argued, "the girl's illegitimate origin offset her suitor's inferior
colour."3 1 In cases such as this, authorities approached what we
would today call race as one of several features determining a
person's worth and social station.3 29
Despite the fact that there were more people "in between" black
and white in the United States than is usually portrayed, and the fact
that the slavery era was not characterized by a rigid "one-drop-ofblood" rule," racial fluidity did not weaken white supremacy. And in
this way, Louisiana was very similar to the rest of the U.S. South. It
shared the same commitment to white supremacy and to a racial
justification for slavery.
Thus, it is not surprising that Louisiana, like other southern
states, saw an increasing number of trials in the decades before the
Civil War and saw an increasing number of trials brought to
determine an individual's racial identity. In Louisiana, as in Virginia,
racial-identity litigation before 1830 turned on claims of Indian
ancestry. For example, in 1820, Ulzere, the son of Mary Ann, a
"Chickasaw squaw" who was "considered as an Indian woman," sued
for his freedom based on his Indian ancestry.3 31 Ulzere won at trial
but lost on appeal because he had relied on reputation rather than
documentation.33 2 As it became more urgent to draw the line between
slave and free as a line between black and white, litigation increased
and became more hotly contested. Despite state statutes setting rules
for the determination of "negro" or "mulatto" status, usually in terms
326. See VERENA MARTINEZ-ALIER, MARRIAGE, CLASS AND COLOUR IN
NINETEENTH CENTURY CUBA: A STUDY OF RACIAL ATTITUDES AND SEXUAL VALUES
IN A SLAVE SOCIETY 11 (1974).
327. See id. at 22-25.
328. Id. at 11-12.
329. See id. at 15-18. For more on the 1776 Royal Pragmatic and its effects, see ANN
TWINAM, PUBLIC LIVES, PRIVATE SECRETS: GENDER, HONOR, SEXUALITY, AND
ILLEGITIMACY IN COLONIAL SPANISH AMERICA 307-13 (1999).
330. See GROSS, supra note 319, at 13.
331. Ulzere v. Poeyfarre, 8 Mart. (o.s.) 155, 155 (La. 1820); see also Seville v. Chretien,
5 Mart. (o.s.) 275, 290-91 (La. 1817) (finding that Indian ancestry alone did not entitle
plaintiff to freedom under Louisiana law).
332. See Ulzere, 8 Mart. at 160-61.
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of fractions of African "blood,"3 33 these definitions could not resolve
disputes about an individual's racial identity. Often, litigation just
pushed the dispute back a generation or two as courtroom inquiry
turned from the racial identity of the individual at issue to the racial
identity of one's grandmother.33 4 Still, the question remained: how
could one know race?335
In practice, two ways of "knowing" race became increasingly
important in courtroom battles over racial identity in the first half of
the nineteenth century; one a discourse of race as "science" and the
other of race as "performance." During the 1850s, as the question of
race became more and more hotly contested, courts began to consider
"scientific" knowledge of a person's "blood" as well as the ways she
revealed her blood through her acts."' The mid-nineteenth century
thus saw the development of a scientific discourse of race that located
the essence of racial difference in physiological characteristics, such as
the size of the cranium and the shape of the foot, and attempted to
link physiological attributes with moral and intellectual difference.
Yet the most striking aspect of "race" in trials of racial identity was
not so much its biologization, but its performative and legal aspects.
Proving one's whiteness meant performing white womanhood or
manhood, whether doing so before the court or through courtroom
narratives about past behavior.3 While the essence of white identity
might have been white "blood," because blood could not be
transparently known, the evidence that mattered most was evidence
about the way people acted out their true nature.3
Enslaved women suing for their freedom performed white
womanhood by showing their beauty and whiteness in court and by
demonstrating purity and moral goodness to their neighbors.339 To the
extent they could fit this ideal of white womanhood, women of
ambiguous racial identity could call upon the protection of honorable
gentlemen-and of the state.340
333. See GROSS, supra note 319, at 43-44 (discussing various states' rules for
determining racial status).
334. See supra notes 295-318 and accompaying text (discussing the earlier Hudgins and
Gregory cases).
335. For more detailed discussions of this topic, see GROSS, supra note 319, at 16-139;
Ariela J. Gross, Litigating Whiteness: Trials of Racial Determination in the Nineteenth
Century South, 108 YALE L.J. 109, 124-32 (1998).
336. See GRoss, supra note 319, at 38.
337. See id. at 48-63.
338. See id.
339. See id. at 58.
340. See Gross, supra note 335, at 176.
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SLAVES, FREE BLACKS, AND RACE
1753
Men, on the other hand, performed white manhood by acting
like gentlemen and by exercising legal and political rights: sitting on
juries, mustering into the militia, voting, and testifying in court.3 4 1 At
trial, witnesses translated legal rules based on ancestry and "blood"
into wide-ranging descriptions of individuals' appearances,
reputation, associations, and racial performances, especially of civic
acts. 34 2 There was a certain circularity to these legal determinations of
racial identity.343 Status depended on racial identity, but status was
also part of the essence of racial identity.' Degraded status signified
"negro blood." 5 Conversely, behaving honestly, industriously, and
respectably and exercising political privileges signified whiteness."
Despite the more established community of free people of color
in New Orleans, and the fact that free people of color sometimes
appeared as slaveholders in these trials, the lawsuits proceeded quite
similarly in Louisiana to the way they did in Virginia and other states.
Even in cases involving witnesses and litigants from Santo Domingo
testifying about racial practices there, most witnesses made clear that
"negroes had no priviledges at all." 347 Another testified that "[i]f a
white man or a white woman had married a coloured man or woman
at San[to] Domingo they would have been disgraced .... The whites
fought in company with the Blacks but did not admit them in the
families." 348
What limited research exists in other parts of Latin America on
racial definition adjudications at the local level in the nineteenth
century suggests that legal officials and courts relied far more heavily
on documentation to determine racial identity than U.S. courts
could.34 9 The fact that the Catholic Church recorded marriages, births,
341. See GROSS, supra note 319, at 49.
342. See Gross, supra note 335, at 159.
343. See GROSS, supra note 319, at 54.
344. See id.
345. See, e.g., State v. Cantey, 20 S.C.L. (2 Hill) 614, 615 (S.C. 1835).
346. See, e.g., id. at 616; see also GROSS, supra note 319, at 54-55 (describing the Cantey
decision as the "clearest judicial statement of white manhood as civic performance").
347. See Transcript of Trial at 24-26, Boullemet v. Phillips, No. 4219 (La. New Orleans
Parish Ct. June 1837) (collection of Earl K. Long Library, Special Collections & Archives,
Univ. of New Orleans, New Orleans, La., Supreme Court Records), rev'd, 2 Rob. 365 (La.
1842).
348. See id. at 39-43 (third alteration in original); see also Cauchoix v. Dupuy, 3 La.
206, 207-08 (1831) (discussing how a man was able to recover partial damages for slander
for being mistakenly accused as being a "man of color").
349. See generally Jean H6brard, Esclavage et dinomination: imposition et
appropriationd'un nom chez les esclaves de la Bahia au XIX( Siecle, 53/54 CAHIERS DU
BRtSIL CONTEMPORAIN, 2003, at 31 (analyzing the role of naming practices in
determining slave status in nineteenth-century Salvador, Brazil); Richard Lee Turits, Par-
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and deaths, including notations of racial identity, meant less reason
for courts in Latin America to rely on reputation and performance.s 0
Perhaps this is part of the reason for the greater recourse to
discourses of racial science and performance in the United States. But
an equally significant factor in the importance of performance to
racial definition in the United States was the ideological connection
between whiteness and fitness for citizenship that was part of the
politics of "white man's democracy."35 ' Racial identity litigation was
shaped by that ideology and reinforced it as well.
CONCLUSION
A careful comparison of the legal regimes of Cuba, Louisiana,
and Virginia concerning race under slavery, one based on local
statutes and litigation practices, reveals some unexpected results. First
of all, there is an important commonality: slaveowners in all places
sought to construct a social order based on clearly delimited, fixed,
binary categories in which race and status were coincidental. But
whereas local legislators in colonial Havana and Louisiana could rely
on well-established doctrinal and legal principles in their efforts,
those of Virginia lacked such precedents. Thus, the legal situation of
blacks was much more uncertain in early colonial Virginia than it ever
was in Havana or in other Spanish colonies.
Legal precedents, however, provided Spanish colonials with
ready-made molds of social organization that also included significant
limitations on the slaveowners' ability to legislate their world. Among
these limitations was the possibility (and, at least theoretically, the
desirability) of manumission. As much as slaveowners in the Spanish
colonies sought to create a dichotomous world of slaves and masters,
they could not prevent the formation of sizeable communities of free
people of African ancestry. These communities, ubiquitous
throughout the Iberian New World colonies, considerably
complicated the desired association of race and status, an association
that slaveowners had sought to fix in law since the sixteenth century.
The masters' right to manumit their slaves was never legally
deld les plantations. Question raciale et identitis collectives ! Santo Domingo, GENESES,
Mar. 2007, at 51 (exploring how, following the decline of the prosperous sugar economy in
sixteenth-century Santo Domingo, the power of "race" as a collective social identity and
symbol of social divisions went into decline).
350. See Hdbrard, supra note 349, at 50-58 (discussing the process of naming in proslavery Brazil during the nineteenth century).
351. See supra notes 252, 323, 341-46346, and accompanying text.
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SLAVES, FREE BLACKS, AND RACE
1755
restricted, and slaves used some institutions, particularly coartaci6n,
to increase their legal avenues to fight for freedom.
In Virginia, by contrast, the absence of precedents allowed
slaveowners to legislate their world in terms that were closer to their
own ideal. Once the initial period of relative uncertainty concerning
the legal situation of Africans was completed, legislators found ways
to restrict manumission in significant ways; so at least since the early
eighteenth century the proportion of freedmen and women in
Virginia never approached the levels found in Cuba or in Louisiana,
even after Louisiana became a U.S. territory and state. The initial
period of legal uncertainty in Virginia was surely used by
entrepreneurial slaves to improve their situation; it was certainly used
by slaveowners to restrict opportunities for their slaves and even for
free blacks in ways that local legislators in Spanish America could not
achieve.
Still, the goal of dichotomous societies in which race and status
were perfectly coincidental was never achieved in any of these
jurisdictions. In each place, slaves found ways to escape slavery and
free blacks managed to survive and carve out social and economic
spaces for themselves. During the Revolutionary era, slaves across
the Americas took advantage of relaxed rules regarding
manumission, or, in the case of Spanish America, of legislative
reform, to press for their freedom. In the nineteenth-century United
States, however, because of the development of a racialized political
ideology of "white man's democracy," as well as the pressure of
sectional conflict over slavery, white southerners increasingly turned
to the courts to draw the line between black and white. Racialidentity litigation drew a connection between whiteness and
citizenship that did not develop in Cuba.
A comparison of the legal regimes concerning slavery in Cuba,
Louisiana, and Virginia, based on local statutes, trials, and slaves'
initiatives, reveals a number of similarities and differences that a
previous generation of comparative scholars could not grasp. The
reason for this gap in analysis is largely a question of methods and
sources. Previous comparisons relied on disparate bodies of
legislation (local statutes in Virginia versus metropolitan law in the
case of Cuba) and paid little attention to slaves, free people of color,
and their legal initiatives. But if recent scholarship on slaves and the
law has taught us anything, it is that such initiatives helped to define
legal institutions and practices in crucial ways. In all three
jurisdictions, slaves and free people of color took advantage of the
legal tools that were available to them. Their success depended in
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part on the political clout of their communities, the legal and political
environment in which they acted, and the extent to which customary
practices had become embedded in legal institutions. In Cuba, wellworn avenues to freedom for a limited number of slaves made it less
possible for the kind of crackdown on free people of color that
occurred in Virginia and Louisiana in the mid-nineteenth century to
be successful. Nevertheless, across all jurisdictions, people on the
border between slave and free, black and white, challenged the efforts
of elites to enshrine an indelible line between debased and enslaved
blacks, and free white citizens.